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2015

Free Speech and Democracy in the Video Age Free Speech and Democracy in the Video Age

Justin F. Marceau

Alan K. Chen

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Recommended Citation Recommended Citation 116 Colum. L. Rev. 991 (2016)

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Free Speech and Democracy in the Video Age Free Speech and Democracy in the Video Age

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991

FREE SPEECH AND DEMOCRACY IN THE VIDEO AGE

Justin Marceau* & Alan K. Chen**

This Article examines constitutional theory and doctrine as appliedto emerging government regulation of video image capture across a spec-trum of regulatory regimes. It proposes a framework that promotes freespeech to the fullest extent without presenting unnecessary intrusionsinto legitimate property or privacy interests. The Article first argues thatvideo recording is a form of expression or at the very least, is conductthat serves as a necessary precursor of expression such that it counts asspeech under the First Amendment. It continues with the novel argu-ment that none of the features that make video recording a form of ex-pression apply differently when the recording takes place on privateproperty. Next, the Article examines under what circumstances video re-cording is constitutionally protected. It claims that video recording inpublic places or on private property with the consent of those recorded ispresumptively protected speech under the First Amendment. But it alsoargues that the right to record attaches even when the recording is non-consensual and occurs on private property, as long as the material rec-orded is a matter of public concern and is done by someone who is law-fully present on that private property. That is not to say that all regula-tion of such recordings violates the First Amendment, and the Articletherefore addresses when countervailing governmental interests, includ-ing tangible property interests and reasonable privacy expectations,might justify limitations on the right to record.

INTRODUCTION ......................................................................................... 992I. VIDEO RECORDING AS SPEECH................................................................ 998

A. The First Amendment Values of Video Recording ................... 999B. Video Recording as a Component of Expression.....................1010C. Video Recording as Conduct Essentially Preparatory to

Speech ........................................................................................1017

* Animal Legal Defense Fund Professor of Law, University of Denver Sturm Collegeof Law.

** William M. Beaney Memorial Research Chair and Professor of Law, University ofDenver Sturm College of Law. The authors would like to thank Jane Bambauer, ArthurBest, Ashutosh Bhagwat, Marc Blitz, Richard Fallon, Stephen Henderson, Margot Kaminski,Justin Pidot, Neil Richards, Joseph Thai, Alexander Tsesis, Mark Tushnet, Sonja West, andother participants at the 2015 Yale Freedom of Expression Scholars Conference for help-ful comments on and conversations about earlier versions of this paper. We also greatlyappreciate the excellent research assistance of Diane Burkhardt, Ellen Giarratana, KateSanford, and Michael Wilmore. All errors and omissions are ours alone.

992 COLUMBIA LAW REVIEW [Vol. 116:991

D. Video Recording Counts as Speech Whether It Occurs inPublic or Private.........................................................................1023

II. FROM COVERAGE TO RIGHT: THE CONTOURS OF A CONSTITUTIONALRIGHT TO VIDEO IMAGE CAPTURE ......................................................1026A. Defining the Scope and Limits of a Constitutional Right to

Record ........................................................................................1027B. Addressing Potential Barriers to a Right to Record in Private

Under Existing First Amendment Doctrine .............................1041C. Governmental Interests and the Right to Record ....................1048

CONCLUSION ............................................................................................1061

INTRODUCTION

“I said, ‘Be careful, his bow tie is really a camera.’” 1

The pervasiveness of digital video recording by large segments of thepublic has produced a wide range of interesting social challenges butalso presents provocative new opportunities for free speech, transpar-ency, and the promotion of democracy. The opportunity to gather anddisseminate images, facilitated by easy access to inexpensive cameraphones and other hand-held recording devices, decentralizes politicalpower in transformative ways. At the same time, other uses of this tech-nology represent potentially significant intrusions on property rights andpersonal privacy. This tension creates a substantial dilemma for policy-makers and theorists who care about both free speech and privacy. ThisArticle examines constitutional theory and doctrine as applied to emerg-ing government regulations of video image capture and proposes a frame-work that will promote free speech to the fullest extent possible withoutfacilitating unnecessary intrusions into legitimate privacy interests.

Laws governing video image capture are already commonplace inmany contexts. The U.S. Supreme Court and state courts in many juris-dictions forbid video recording of court proceedings.2 Restrictions onvideotaping live artistic performances are widespread, whether by statute,contractual agreement, or federal copyright law.3 Additionally, video re-cording bans are becoming more common across a number of differentregulatory regimes. For example, the Federal Aviation Administration re-cently fined a documentary filmmaker for violating its regulations when he

1. Simon & Garfunkel, America, on Bookends (Columbia Records 1968).2. See, e.g., Fed. R. Crim. P. 53; D.C.Colo.LCivR 83.1; Visitor’s Guide to Oral

Argument, U.S. Sup. Ct., http://www.supremecourt.gov/visiting/visitorsguidetooralargument.aspx [http://perma.cc/YG9D-B8ZF] (last visited Jan. 27, 2016); see also 1 Kevin F. O’Malley,Jay E. Grening & William C. Lee, Federal Jury Practice and Instructions 99 n.7 (6th ed.2006) (detailing state practices allowing audiovisual recording of court proceedings).

3. See, e.g., 17 U.S.C. § 1101(a) (2012) (subjecting those who videotape artistic per-formances to same civil remedies as copyright infringers).

2016] FREE SPEECH AND DEMOCRACY IN THE VIDEO AGE 993

flew a drone from which he recorded and disseminated a video image.4

Similarly, Idaho enacted a new law prohibiting any person from usingdrones “to intentionally conduct surveillance of, gather evidence or col-lect information about, or photographically or electronically record spe-cifically targeted persons or specifically targeted private property.”5 Con-troversies also have arisen with regard to laws restricting citizens’ abilityto record law enforcement officers,6 an issue that has gained particularsalience with the viral dissemination of recordings of police officers’ useof force on Eric Garner in Staten Island, New York,7 Walter Scott inNorth Charleston, South Carolina,8 and Sandra Bland in Waller County,Texas,9 among many others. In a very different context, lawmakers havecriminalized surreptitious, nonconsensual recording of another’s privatebody parts and sexual conduct through video voyeurism laws.10 And afederal court recently issued a temporary restraining order banning ananti-abortion group from circulating undercover videos it had recorded

4. Margot Kaminski, Drones and Newsgathering at the NTSB, Concurring Opinions(May 9, 2014), http://www.concurringopinions.com/archives/2014/05/drones-and-newsgathering-at-the-ntsb.html [http://perma.cc/LM76-2FCY].

5. Idaho Code Ann. § 21-213 (West 2014). For comprehensive treatment of the reg-ulation of drone recordings, see generally Marc Jonathan Blitz et al., Regulating DronesUnder the First and Fourth Amendments, 57 Wm. & Mary L. Rev. 49 (2015) [hereinafterBlitz et al., Regulating Drones] (discussing government’s interest in regulating drones);Margot E. Kaminski, Regulating Real-World Surveillance, 90 Wash. L. Rev. 1113 (2015)[hereinafter Kaminski, Regulating Real-World Surveillance] (identifying government’s in-terest in such regulations and providing guidelines for future legislation governing newsurveillance technologies).

6. See ACLU v. Alvarez, 679 F.3d 583, 586–87 (7th Cir. 2012) (finding Illinois statutecriminalizing recording police officers in public likely violates First Amendment).

7. N.Y. Daily News, Original Eric Garner Fatal Arrest Video, YouTube (Dec. 30,2014), http://www.youtube.com/watch?v=LfXqYwyzQpM (providing video of Eric Garner’sarrest). In the high profile case of Michael Brown in Ferguson, Missouri, there was novideo recording of the shooting that led to this death. CNN, New Video from the MichaelBrown Shooting Death, YouTube (Aug. 13, 2014), http://www.youtube.com/watch?v=advkpZIuq2U.

8. N.Y. Times, Walter Scott Death: Video Shows Fatal North Charleston Police Shooting,YouTube (Apr. 7, 2015), http://www.youtube.com/watch?v=XKQqgVlk0NQ (providingvideo of Walter Scott’s death).

9. USA Today, New Dashcam Video Details Sandra Bland’s Arrest, YouTube (July 21,2015), http://www.youtube.com/watch?v=QwxHCVgyOjs (providing dashcam video of SandraBland’s arrest).

10. Video Voyeurism Prevention Act of 2004, 18 U.S.C. § 1801 (2012). This Articledistinguishes these laws, which directly regulate the act of recording, from so-called “re-venge porn” laws, which regulate the distribution of sexually intimate video images thatwere recorded, but not disseminated, with the consent of the recorded parties. These lawsraise important constitutional and public policy questions, but because they do not focuson the initial recording, this Article does not evaluate them as implicating the right torecord. For a comprehensive examination of such laws, see generally Danielle Keats Citron& Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345 (2014)(advocating for criminalization of revenge porn and discussing potential First Amendmentimplications).


that purported to reveal misconduct by Planned Parenthood officialswith regard to the sale of fetal tissue.11 Even more recently, PlannedParenthood and the National Abortion Federation have filed lawsuitsalleging a range of federal and state law violations against the organiza-tion that coordinated undercover video investigations of its officials.12

Another important context in which video image capture is beingtargeted as “wrongful” conduct13 is so-called “ag-gag” laws,14 which havebecome a leading legislative priority of commercial food producersacross the country.15 The model legislation drafted by the AmericanLegislative Exchange Council (ALEC)16 criminalizes the act of noncon-sensual audio or video recording on the premises of slaughterhouses,factory farms, and other industrial meat operations, and state statutestend to follow this template.17 The first ag-gag laws were enacted in the

11. Order Keeping Temp. Restraining Order in Effect Until Resolution of Requestfor Preliminary Injunction, Nat’l Abortion Fed’n v. Ctr. for Med. Progress, No. 3:15-cv-03522-WHO (N.D. Cal. Aug. 3, 2015). This Article briefly discusses the Planned Parenthoodvideo dispute, which is still developing, below. See infra notes 53–56 and accompanyingtext.

12. Complaint ¶¶ 145–245, Planned Parenthood Fed’n v. Ctr. for Med. Progress, No.3:16-cv-00236 (N.D. Cal. Jan. 14, 2016), 2016 WL 159573, at *41–62; Complaint forInjunctive Relief & Damages ¶¶ 94–197, Nat’l Abortion Fed’n v. Ctr. for Med. Progress,No. 3:15-cv-03552-WHO, (N.D. Cal. July 31, 2015), 2015 WL 4591870, at *36–58. See alsoSandhya Somashekhar, Planned Parenthood Files Lawsuit over Antiabortion ‘Sting’ Video-maker, Wash. Post (Jan. 14, 2016), http://www.washingtonpost.com/national/planned-parenthood-files-lawsuit-against-antiabortion-sting-video-maker/2016/01/14/446d9206-baf5-11e5-829c-26ffb874a18d_story.html (on file with the Columbia Law Review) (linking tocomplaint).

13. Defendant Wasden’s Response to Motion for Partial Summary Judgment Filed onNovember 18, 2014 at 15, Animal Legal Def. Fund v. Otter, 118 F. Supp. 3d 1195 (D. Idaho2014) (No. 1:14-cv-00104-BLW), 2014 WL 7530410, at *15 (“The statute’s objective is ‘toprotect agricultural production facilities from interference by wrongful conduct.’” (citingS. 66-1337, 2d Reg. Sess. (Idaho 2014))).

14. The term “ag-gag” was originated by food writer Mark Bittman. See Mark Bittman,Who Protects the Animals?, N.Y. Times: Opinionator (Apr. 26, 2011), http://opinionator.blogs.nytimes.com/2011/04/26/who-protects-the-animals/ (on file with the Columbia LawReview).

15. See Dan Flynn, Farm Protection Is Not “Ag-Gag,” Says Animal Ag Spokeswoman,Food Safety News (Jan. 30, 2013), http://www.foodsafetynews.com/2013/01/call-it-farm-protection-not-ag-gag-says-animal-ags-spokeswoman/ [http://perma.cc/443M-SKHB] (ex-plaining agricultural industry’s push for ag-gag laws in various states); see also Debate:After Activists Covertly Expose Animal Cruelty, Should They Be Targeted with “Ag-Gag”Laws?, Democracy Now! (Apr. 9, 2013), http://www.democracynow.org/2013/4/9/debate_after_activists_covertly_expose_animal [http://perma.cc/4XX3-6FWK] (demonstratingagricultural sector’s advocacy for ag-gag legislation).

16. It has been reported that ALEC was integrally involved in the drafting of modelag-gag legislation. See Will Potter, “Ag Gag” Bills and Supporters Have Close Ties toALEC, Green Is the New Red (Apr. 26, 2012), http://www.greenisthenewred.com/blog/ag-gag-american-legislative-exchange-council/5947/ [http://perma.cc/7KS2-2RG2].

17. See, e.g., Idaho Code § 18-7042 (Supp. 2015) (criminalizing nonconsensualvideotaping or sound-recording of agricultural operation); Utah Code Ann. § 7-6-112(LexisNexis 2012) (same). Federal litigation challenging the laws in Idaho and Utah is


early 1990s by Kansas, Montana, and North Dakota.18 Montana’s law waslargely limited to conduct that was already criminalized, but Kansas andNorth Dakota included precursors to more recent laws by prohibitingnonconsensual video recordings.19 Since 2012, five other states have en-acted new, much more restrictive ag-gag laws.20 These ag-gag laws arestriking in the scope of their recording prohibitions, which typically crim-inalize the act of recording conduct or activities that one is otherwise law-fully able to observe from a location he is otherwise lawfully permitted to

currently pending. See Animal Legal Def. Fund v. Otter, 44 F. Supp. 3d 1009, 1014 (D.Idaho 2014), appeal filed, No. 15-35960 (9th Cir. 2015) (challenging Idaho law criminaliz-ing undercover investigations and videography at “agricultural facilities” on First Amendmentbasis); Transcript of Motion Hearing at 89–90, 99, Animal Legal Def. Fund v. Herbert, No.2:13-CV-00679 (D. Utah Sept. 8, 2014) (denying motion to dismiss in part on First Amendmentbasis). On August 3, 2015, the District Court of Idaho granted summary judgment to theplaintiffs in Otter and declared the Idaho ag-gag law to be unconstitutional. See Otter, 118F. Supp. 3d at 1212. The authors disclose that they serve as plaintiffs’ counsel in both ofthese cases.

Another common feature of these laws is the criminalization of misrepresentations asa means of gaining access to those places for the purpose of taking audio recordings orvideo images. See, e.g., Iowa Code Ann. § 717A.3A.1.b (West 2013). In a separate article,the authors argue that the misrepresentation provisions violate the First Amendment be-cause lies used to facilitate the collection of information on matters of public concernhave substantial speech value. See Alan K. Chen & Justin Marceau, High Value Lies, UglyTruths, and the First Amendment, 68 Vand. L. Rev. 1435, 1447–51 (2015) (addressingwhen lies deserve First Amendment protection). A third common provision required insome states is that any videotape of unlawful activity recorded in these locations must beturned over to the state within twenty-four hours after it is obtained. See, e.g., Mo. Ann.Stat. § 578.013 (West Supp. 2015).

18. Kan. Stat. Ann. §§ 47-1825–1828 (Supp. 2014); Mont. Code Ann. §§ 81-30-101–105 (2015); N.D. Cent. Code Ann. §§ 12.1-21.1-01–05 (West 2015) (generally prohibitingnonconsensual entry to animal facilities).

19. Kan. Stat. Ann. § 47-1827(c)(4) (prohibiting nonconsensual entry to animal facil-ity to take pictures by photograph or video camera); Mont. Code Ann. § 81-30-103(2)(e)(prohibiting nonconsensual entry to animal facility to take pictures “with the intent tocommit criminal defamation”); N.D. Cent. Code § 12.1-21.1-02.6 (prohibiting nonconsen-sual entry to animal facility to use or attempt to use camera, video recorder, or other videoor audio recording equipment).

20. See Idaho Code § 18-7042 (criminalizing misrepresentations made to gain entryto agricultural facility with intent to record facility operations); Iowa Code Ann. § 717A.3A(criminalizing use of false pretenses to obtain access to agricultural facilities with intent tocommit act unauthorized by owner); Mo. Ann. Stat. § 578.013 (requiring those recordingfarm animal abuse to submit recordings to law enforcement within twenty-four hours);Utah Code Ann. § 76-6-112 (criminalizing obtaining access to agricultural facilities underfalse pretenses with intent to record facility’s operations); Property Protection Act, ch.99A, N.C. Sess. Laws 2015-50 (proposing authorization of civil remedies for those whosustain damages from use of unauthorized recordings on their premises); see also Sarah R.Haag, Note, FDA Industry Guidance Targeting Antibiotics Used in Livestock Will NotResult in Judicious Use or Reduction in Antibiotic-Resistant Bacteria, 26 Fordham Envtl. L.Rev. 313, 318 (2015) (listing eight states with ag-gag provisions); Sarah Evelynn, Does Ag-Gag Make You Gag?, Bill Track 50, http://www.billtrack50.com/blog/civil-rights/does-ag-gag-make-you-gag/ [http://perma.cc/QA9T-Q3GR] (last visited Jan. 27, 2016) (listing fivestates that proposed ag-gag bills).


be. They have arisen in direct response to the activities of animal rightsactivists who have surreptitiously recorded severe animal abuse at com-mercial agricultural operations and exposed numerous illegalities andatrocities at the hands of their employees.21

A number of important constitutional questions are implicated bythe state regulation of video image capture. For example, if recordingbans such as ag-gag laws are constitutionally permissible, it is foreseeablethat any number of industries and business operations would seek similargovernment controls on surreptitious video recordings that might exposemisconduct in other areas of the private sector, such as commercial child-care facilities, senior-care homes, hospitals, and industrial factories.22

Such laws represent a unique incidence of legal regulation—private com-mercial interests coopting state legislatures to take sides in distorting dis-course by chilling the speech on only one side of an important publicdebate.

Absent from the judicial and academic treatment of video recordingregulations is any meaningful attempt to address the most pressing ques-tions regarding application of the First Amendment. This Article tries tofill that gap by identifying and answering four primary questions. First, isthe act of video image capture a form of speech or an intrinsic precursorto speech and thereby covered by the First Amendment?23 Second, ifvideo image capture is speech, does that include all such recordings oronly those that occur in public or with the consent of the persons rec-

21. See, e.g., Nicholas Kristof, Opinion, To Kill a Chicken, N.Y. Times (Mar. 14,2015), http://www.nytimes.com/2015/03/15/opinion/sunday/nicholas-kristof-to-kill-a-chicken.html? (on file with the Columbia Law Review) (describing industrial chicken farmingas torture).

22. One state has already legislated a prohibition on employment-based recordinginvestigations in every industry: North Carolina recently enacted, over the governor’s veto,a statute creating a sweeping civil tort claim for all employers who are the subjects ofrecording investigations by their employees. Property Protection Act, ch. 99A, N.C. Sess.Laws 2015-50. Among other things, the law permits an employer to sue

[a]n employee who intentionally enters the nonpublic areas of an em-ployer’s premises for a reason other than a bona fide intent of seekingor holding employment or doing business with the employer and there-after without authorization records images or sound occurring within anemployer’s premises and uses the recording to breach the person’s dutyof loyalty to the employer.

Id. § 99A-2(b)(2). For now, this Article brackets regulations of recordings at public facili-ties, particularly ones in which there may be governmental security concerns, such asmilitary bases and prisons, that may implicate different legal and policy issues.

23. See Frederick Schauer, The Boundaries of the First Amendment: A PreliminaryExploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004) [hereinafterSchauer, Boundaries of the First Amendment] (observing First Amendment coveragequestions receive far less academic attention than issues about level of constitutional pro-tection for expression). The courts have recognized in a number of contexts that regula-tion of conduct necessary to produce speech implicates the First Amendment. See infrasection II.C (outlining cases in which courts have recognized First Amendment protectionfor conduct preparatory to speech).


orded?24 Although the First Amendment does not ordinarily apply to ex-pression occurring on private property, state laws that criminalize record-ing on private property based on the recording’s content necessarily im-plicate constitutional concerns.25 Third, if video recording is covered bythe First Amendment, is its coverage limited to matters of public concernthat facilitate public discourse? Fourth, and finally, if video image captureis speech, what standard of review ought to apply to its regulation? Arethe default doctrinal First Amendment rules—including strict scrutiny ofcontent-based limits—adequate to protect important speech whilemaintaining sensitivity to legitimate property and privacy concerns? Onlyby answering these open questions can lawyers and courts competentlyprovide answers to some of the most vexing and undecided questions offree speech law, such as the constitutionality of laws banning dronerecordings or criminalizing secret videos by undercover animal welfareinvestigators.

In examining these issues, this Article unfolds as follows. Part I ar-gues that video recording is a form of expression covered by the FirstAmendment or alternatively, that it constitutes conduct so directly linkedto expression that its regulation must comply with constitutional safe-guards for speech and then examines existing case law and literature onthis matter. This Part concludes with a novel discussion explaining thatnone of the features that make video recording a form of speech applydifferently when the recording takes place on private property. Record-ing does not lose its speech characteristics depending on where it oc-curs—indeed, there is no form of speech that becomes nonspeech depend-ing on its location.26

While Part I argues that video recording is covered by the First Amendment,Part II examines in what circumstances it is constitutionally protected. ThisPart identifies several factors that are important to defining a limitedconstitutional privilege to engage in audiovisual recording. First, it claimsthat video recording in public places or on private property with the con-sent of those recorded is presumptively protected speech under the FirstAmendment. Second, it argues that the right to record attaches evenwhen the recording is nonconsensual and occurs on private property.While this Article acknowledges that the First Amendment does not limitthe enforceability of generally applicable prohibitions on access to pri-vate property (at least so long as their application has only an incidentalimpact on speech), it nonetheless asserts that recording activity that is amatter of public concern by someone who has gained lawful access to

24. See Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory,Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 366–67 (2011) (discussing ten-sion between privacy and First Amendment protections for image capture).

25. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992) (striking down city or-dinance forbidding placement of symbols or objects on private property).

26. Of course, the location or nature of the recording may have an impact on the rel-evant level of scrutiny applicable to the speech restriction.


private property is protected speech. That is not to say that all regulationof such recordings violates the First Amendment, and the Article thereforeaddresses when countervailing governmental interests might justify limi-tations on the right to record. Part II also considers, but ultimately dis-misses, potential barriers to recognizing a right to record (particularly inprivate) under existing First Amendment doctrine. Throughout this Part,the Article draws on examples of laws regulating video recordings to sug-gest how its proposed model for a right to record would apply in context.

I. VIDEO RECORDING AS SPEECH

A fundamental element of speech theory involves determining what,beyond the obvious category of spoken or written words, “counts” asspeech and therefore is potentially entitled to First Amendment protec-tion.27 The so-called “coverage problem” has recently intrigued manyscholars who have explored which types of conduct are sufficiently re-lated to the values underlying the First Amendment such that the free-speech implications of their regulation ought to be seriously consid-ered.28 Furthermore, the Supreme Court has confronted several coverageissues in its decisions over the past decades.29

This Part of the Article first explores the extent to which video re-cording may advance what are typically viewed as the primary free speechvalues under conventional First Amendment theory—promoting demo-cratic self-governance and facilitating the broader search for truth. Itthen makes the case that under First Amendment doctrine, the act of

27. Schauer, Boundaries of the First Amendment, supra note 23, at 1767.28. See, e.g., Jane Bambauer, Is Data Speech?, 66 Stan. L. Rev. 57, 63–64 (2014)

(arguing data are form of protected speech as data serve purpose of knowledge creation);Ashutosh Bhagwat, Producing Speech, 56 Wm. & Mary L. Rev. 1029, 1035 (2015)[hereinafter Bhagwat, Producing Speech] (arguing conduct associated with producingspeech should generally be protected by First Amendment); Joseph Blocher, Nonsenseand the Freedom of Speech: What Meaning Means for the First Amendment, 63 Duke L.J.1423, 1441–53 (2014) (detailing First Amendment protection for nonsense, or meaning-less words); Alan K. Chen, Instrumental Music and the First Amendment, 66 Hastings L.J.381, 385 (2015) [hereinafter Chen, Instrumental Music] (“[I]nstrumental musical expres-sion is constitutionally equivalent to speech.”); John Greenman, On Communication, 106Mich. L. Rev. 1337, 1345 (2008) (defining communication under free-will theory fromviewpoint of listener); Genevieve Lakier, Sport as Speech, 16 U. Pa. J. Const. L. 1109, 1134(2014) (arguing sports are speech and thus covered by First Amendment); Mark Tushnet,Art and the First Amendment, 35 Colum. J.L. & Arts 169, 216 (2012) (exploring FirstAmendment doctrine as applied to artwork); R. George Wright, What Counts as “Speech”in the First Place?: Determining the Scope of the Free Speech Clause, 37 Pepp. L. Rev.1217, 1218 (2010) (exploring boundaries of scope of First Amendment protections). Seealso Kent Greenawalt, Speech, Crime, and the Uses of Language 54 (1989) (distinguishingspeech from conduct conveying no message).

29. See, e.g., Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) (video games);Virginia v. Black, 538 U.S. 343 (2003) (cross burning); Hurley v. Irish-Am. Gay, Lesbianand Bisexual Grp., 515 U.S. 557 (1995) (parades); Texas v. Johnson, 491 U.S. 397 (1989)(flag burning).


video recording constitutes a form of expression covered by the Constitution.Next, it makes the alternative claim that if video image capture is not speech,it is nevertheless covered by the First Amendment because it is conductpreparatory to speech. Finally, this Part argues that the characteristicsthat make video recording a form of speech or conduct preparatory tospeech do not change when the recording is made on private, as op-posed to public, property. Together, these arguments lead to the conclu-sion that video recording on private or public property is a form of ex-pression covered by the First Amendment.

A. The First Amendment Values of Video Recording

First Amendment theory strongly supports the notion that video re-cording is a form of expression or conduct preparatory to speech. Themost common justifications for protecting expression under free-speechlaw typically turn on three major instrumental claims. First, it has longbeen argued that speech is an important means for promoting demo-cratic self-governance.30 A second and related rationale for speech pro-tection is that unfettered discourse facilitates the search for broadertruths beyond the political world.31 Finally, some have argued that protec-tion of speech advances important interests in individual self-realizationand autonomy.32

This Article argues that not only does video recording count as aform of expression from a doctrinal perspective but also First Amendmenttheory supports its inclusion as speech because such recording may ad-vance at least two of these interests—democratic self-governance and thesearch for truth—in critical ways.33

30. See Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 75(1948) (describing importance of free speech to self-governing community); Robert H.Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 26 (1971)(arguing democratic principles and First Amendment are inextricably intertwined, regard-less of Framers’ specific intent).

31. See John Stuart Mill, On Liberty 42 (1859) (arguing robust discussion andargument leads to fuller perception of truth); see also Abrams v. United States, 250 U.S.616, 630 (1919) (Holmes, J., dissenting) (“[T]he best test of truth is the power of thethought to get itself accepted in the competition of the market . . . .”).

32. See Martin H. Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 593(1982) (arguing main value of free-speech protection is “individual self-realization”); ThomasScanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204, 217–18 (1972)[hereinafter Scanlon, Theory] (arguing self-autonomy can only be realized through dissem-ination of information fostering unencumbered debate). Other theorists have been criti-cal of utilitarian speech theories. See, e.g., Larry Alexander, Is There a Right of Freedomof Expression? 131 (2005) (criticizing autonomy maximization theories for failing to ac-count for government’s interest in balancing protected rights against each other); AndrewKoppelman, Veil of Ignorance: Tunnel Constructivism in Free Speech Theory, 107 Nw. U.L. Rev. 647, 690–91 (2013) (rejecting free-speech scholars’ focus on self-realization anddemocracy as too narrowly drawn).

33. While not discussing it at length, this Article does not completely discount thepossibility that there is also an autonomy-based rationale for treating video recording as


The capacity for individual citizens to make audiovisual recordingshas been around since at least the latter part of the twentieth century.34

But the advancement of digital technology and the relative ease withwhich one can acquire a recording device has now made video record-ings so widely available as to be virtually ubiquitous.35 Coupled with theadvent of the Internet, the expansion of video recording technology hasmade it possible to broadcast images widely, inexpensively, and instanta-neously.36 This creates transformative ways for individuals to participatein democracy and inform public discourse about not only political andsocial issues but also broader understandings about the truths of the uni-verse, including complex moral questions. From abortion37 to food safetyand animal welfare38 to police misconduct and racism,39 surreptitiousvideo recording adds to the body of knowledge about the most contro-versial aspects of contemporary society.

speech. It could be argued that the freedom to engage in video recording in many settingsallows individuals to express themselves and develop their thoughts, ideas, and other men-tal faculties in a manner that helps them evolve as autonomous human beings. The prob-lem with this argument, as with other autonomy justifications, is that it is difficult to drawthe line between video recording and other forms of conduct that advance autonomy butare more clearly not speech. But see Chen, Instrumental Music, supra note 28, at 411–12(explaining First Amendment serves as limiting principle to autonomy-based theories offree speech).

34. Kreimer, supra note 24, at 339–40 (discussing emergence of digital and cellphonecameras).

35. See id. at 337 (discussing pervasiveness of image capture).36. Id.37. See, e.g., Krishnadev Calamur, A New Planned Parenthood Video and More

Outrage, Atlantic (Aug. 4, 2015, 5:54 PM), http://www.theatlantic.com/national/archive/2015/08/planned-parenthood-video/400472/ [http://perma.cc/2DTC-FFK9] (discussingcontroversy arising from release of Planned Parenthood videos about fetal tissue dona-tion); Christine Mai-Duc, Planned Parenthood Videos Highlight Questions About FetalTissue Research, L.A. Times (Aug. 5, 2015, 4:34 PM), http://www.latimes.com/nation/nationnow/la-na-nn-planned-parenthood-20150716-htmlstory.html [http://perma.cc/RGK5-EN7B] (reporting on release of surreptitiously recorded videos of Planned Parenthood execu-tives discussing fetal tissue donation).

38. See, e.g., Wayne Pacelle, HSUS Undercover Investigation Shutters NJ SlaughterPlant, Huffington Post (Jan. 27, 2014 9:57 AM), http://www.huffingtonpost.com/wayne-pacelle/hsus-undercover-investiga_b_4674009.html [http://perma.cc/MF47-3HLM] (dis-cussing closure of Catelli Bros. slaughter plant in light of surreptitiously recorded footageby Humane Society of United States).

39. See, e.g., Kim Bellware, Cop Placed on Leave After Video Emerges of BrutalArrests at Teen Pool Party, Huffington Post (June 8, 2015, 3:00 PM), http://www.huffingtonpost.com/2015/06/07/mckinney-police-pool-party_n_7530164.html [http://perma.cc/FWB6-59F6] (reporting Texas police officer was placed on administrative leave after re-lease of video showing officer aggressively arresting and pointing his weapon at teens atpool party); CNN, New Video Shows Arrest of Freddie Gray in Baltimore, YouTube (Apr.21, 2015), http://www.youtube.com/watch?v=7YV0EtkWyno (showing video of twenty-five-year-old Freddie Gray’s arrest that allegedly led to his death); Eliott C. McLaughlin,Orlando Police Chief: No Reason to Suspend Officers Who Kicked Man, CNN (June 11,2015), http://www.cnn.com/2015/06/10/us/orlando-police-kick-man-video/ [http://perma.cc/L6AW-AYSD] (showing video of police kicking and tasing man sitting on curb).


And in the post–Citizens United era during which the First Amendmenthas been interpreted to unleash unprecedented levels of corporate politi-cal power in the form of campaign spending and contributions,40 a com-pelling argument could be made that video-image-capture whistleblow-ing may offer a powerful counterbalance. Offsetting corporate spendingsanctioned by the First Amendment in ways that enhance the universe ofspeech and information available to the public about such corporationsensures that the First Amendment provides opportunities for a well-rounded public discourse.

1. Recording Serves Self-Governance. — In Professor Seth Kreimer’s re-cent, path-marking work comprehensively examining the regulation ofimage capture as a free-speech problem, he accurately describes severalof the possibilities that recording has for both public official accountabil-ity and effective citizen participation “in public dialogue.”41 Official cam-paign videos, of course, now play a prominent and central role in elec-toral politics, whether they are broadcast on television or over theInternet.42 But with the proliferation of image-capture technology, unoffi-cial videos, too, have entered the scene. One of the biggest stories of the2012 U.S. presidential campaign emerged when Scott Prouty, a cateringcompany waiter, secretly video recorded a speech by Republican candi-date Mitt Romney at a private fundraising event.43 The nonconsensuallyrecorded video shows Romney talking to wealthy donors about what hecharacterized as the forty-seven percent of Americans who believe theyare “victims” and “believe the government has a responsibility to takecare of them.”44 Not surprisingly, President Barack Obama later usedthese remarks to argue that Romney was out of touch with mainstream,average Americans.45 Of course, the revelations of video recordings are

40. See McCutcheon v. FEC, 134 S. Ct. 1434, 1442 (2014) (holding aggregate limitsplaced on donors’ campaign contributions violate First Amendment); Citizens United v.FEC, 558 U.S. 310, 316 (2010) (holding congressional ban on independent corporateexpenditures for electioneering communications unconstitutional under First Amendment).

41. Kreimer, supra note 24, at 341.42. See, e.g., Hillary Clinton, Getting Started, YouTube (Apr. 12, 2015), http://www.

youtube.com/watch?v=0uY7gLZDmn4 (showing Democratic presidential candidate HillaryClinton’s campaign video); Ted Cruz, Ted Cruz for President, YouTube (Mar. 23, 2015),http://www.youtube.com/watch?v=cEOKJRkhpxg (showing Republican presidential can-didate Ted Cruz’s campaign video).

43. See David Corn, Meet Scott Prouty, the 47 Percent Video Source, Mother Jones(Mar. 13, 2013, 7:01 PM), http://www.motherjones.com/politics/2013/03/scott-prouty-47-percent-video [http://perma.cc/5CFX-P6JN] (“For nearly two weeks [Prouty’s video]dominated the presidential race.”).

44. Jim Rutenberg & Ashley Parker, Romney Says Remarks on Voters Help ClarifyPosition, N.Y. Times (Sept. 18, 2012), http://www.nytimes.com/2012/09/19/us/politics/in-leaked-video-romney-says-middle-east-peace-process-likely-to-remain-unsolved-problem.html (on file with the Columbia Law Review).

45. See Mark Landler, Obama Hits Romney over 47 Percent Remark, N.Y. Times:Caucus (Sept. 20, 2012), http://thecaucus.blogs.nytimes.com/2012/09/20/obama-hits-back-at-romney-on-47-percent-remark/ [http://perma.cc/B4V5-63ND] (explaining President


bipartisan. As Professor Kreimer noted, President Obama himself wascaptured on video talking about “bitter” Pennsylvanians at a private fund-raising meeting during his first presidential campaign.46

Aside from political groups or candidates, video recordings may bevaluable and effective tools that can provide information to the publiceye and be persuasive on a wide range of issues from all points on thepolitical spectrum:

Image capture can document activities that are proper subjectsof public deliberation but which the protagonists would preferto keep hidden and deniable. Animal rights activists regularlyseek to record and publicize what they regard as graphic exam-ples of animal abuse. Conservative activists seek to capture andpublish images of their opponents engaged in activities that theactivists believe the public would oppose. Human rights cam-paigners document violations of humanitarian norms. News or-ganizations place dubious police tactics on the public record.47

These investigations can have enormous impact on social conscious-ness and public policy. For example, in 2008 the Humane Society of theUnited States released video footage from the Hallmark slaughterhousein Chino, California that showed workers “kicking cows, ramming themwith the blades of a forklift, jabbing them in the eyes, applying painfulelectrical shocks and even torturing them with a hose and water in at-tempts to force sick or injured animals to walk to slaughter.”48 Reactionto the video’s public disclosure of this abusive conduct was so strong thatit produced four significant, concrete results: criminal charges against aslaughterhouse manager, the largest beef recall in U.S. history, a $500million False Claims Act judgment,49 and state legislation mandating bet-ter treatment of injured animals.50

Video image capture can also be an important tool for union activ-ists, who may wish to document employers’ violations of federal laborlaws. As the National Labor Relations Board (NLRB) reported in a recentruling against the Whole Foods grocery chain, employees might legiti-mately use video devices for “recording images of protected picketing,

Obama’s comments regarding Romney’s “closed-door observation” as “his most extensive,and barbed”).

46. Kreimer, supra note 24, at 345 n.27.47. Id. at 345.48. Rampant Animal Cruelty at California Slaughter Plant, Humane Soc’y of the U.S.

(Jan. 30, 2008), http://www.humanesociety.org/news/news/2008/01/undercover_investigation_013008.html (on file with the Columbia Law Review).

49. Linda Chiem, Slaughterhouse Owners Hit with $500M Judgment in FCA Case,Law360 (Nov. 16, 2012, 9:35 PM), http://www.law360.com/articles/394827/slaughterhouse-owners-hit-with-500m-judgment-in-fca-case [http://perma.cc/PET8-RH6Z].

50. Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965, 969 (2012) (“[T]he video also prompt-ed the California legislature to strengthen a pre-existing statute governing the treatmentof nonambulatory animals . . . .”). The Court, however, held federal law preempted thelegislation. Id.


documenting unsafe workplace equipment or hazardous working condi-tions, documenting and publicizing discussions about terms and condi-tions of employment, documenting inconsistent application of employerrules, or recording evidence to preserve it for later use in administrativeor judicial forums in employment-related actions.”51 Such recordings canbe valuable in facilitating enforcement of the law and generating politi-cal support and sympathy for union activities. Thus, even a private com-pany’s ban on recording by its employees implicates federal concerns—concerns that led the NLRB to strike down Whole Foods’s categoricalban on nonconsensual recordings by its workers.52

At the other end of the political spectrum, conservative activists havesuccessfully used such techniques to unveil what they claim to be hypoc-risy in liberal organizations. Very recently, representatives of an anti-abortionactivist group called the Center for Medical Progress (CMP) posed aspotential purchasers of tissue from aborted fetuses and secretly recordeda doctor affiliated with Planned Parenthood.53 The group claims that thedoctor’s statements suggest that Planned Parenthood is violating the lawby selling such tissue.54 The reports of the video have prompted someelected officials to call for an investigation of Planned Parenthood.55 Inresponse, the National Abortion Federation recently secured a tempo-rary restraining order barring release of CMP’s recordings.56

51. Whole Foods Mkt., Inc., 205 L.R.R.M. (BNA) 1153 (Dec. 24, 2015).52. Id.53. Jackie Calmes, Video Accuses Planned Parenthood of Crime, N.Y. Times (July 15,

2015), http://www.nytimes.com/2015/07/15/us/video-accuses-planned-parenthood-of-crime.html (on file with the Columbia Law Review).

54. Id. Federal law prohibits such sales for profit. See 42 U.S.C. § 289g-2(a) (2012)(“It shall be unlawful for any person to knowingly acquire, receive, or otherwise transferany human fetal tissue for valuable consideration if the transfer affects interstate com-merce.”); 42 U.S.C. § 289g-2(e)(3) (defining term “valuable consideration” so as not toinclude “reasonable payments associated with the transportation, implantation, pro-cessing, preservation, quality control, or storage of human fetal tissue”). It appears thatthe group actually edited the interview in a way that misrepresents the doctor’s state-ments—leaving out a portion of the interview in which the doctor reiterated that the feescover only the clinic’s actual expenses. See Editorial, The Campaign of Deception AgainstPlanned Parenthood, N.Y. Times (July 22, 2015), http://www.nytimes.com/2015/07/22/opinion/the-campaign-of-deception-against-planned-parenthood.html (on file with theColumbia Law Review) (“The full video of the lunch meeting . . . shows something very dif-ferent from what these critics claim.”). Abortion rights advocacy groups have argued thatthe CMP video was edited in a manner that falsely depicted what truly transpired. See, e.g.,Complaint for Injunctive Relief & Damages ¶¶ 31, 33, 36, Nat’l Abortion Fed’n v. Ctr. forMed. Progress, No. 3:15-cv-03552-WHO (N.D. Cal. July 31, 2015), 2015 WL 4591870 at*13–15.

55. See Calmes, supra note 53 (noting Louisiana governor Bobby Jindal “asked thestate’s health department to investigate Planned Parenthood and ‘this alleged evil and ille-gal activity’”).

56. Alan Zarembo, U.S. Judge Halts Release of Secretly Recorded Videos of AbortionProviders, L.A. Times (Aug. 1, 2015, 7:37 PM), http://www.latimes.com/local/california/la-me-0802-court-order-20150802-story.html [http://perma.cc/4ZMN-P2YA]. The order


Another high-profile example is conservative activist James O’Keefe’sinvestigation of the progressive organization ACORN in 2009.57 O’Keefeand another activist visited an ACORN office and secretly recorded aconversation in which they pretended to be seeking help to facilitate aplan to smuggle underage girls into the United States for the purposes ofprostitution.58 Although the ACORN employee immediately reported the“plan” to law enforcement authorities, O’Keefe released an edited ver-sion of the video that was broadcast publicly and appeared to show theACORN employee offering support for parts of the plan.59 This led to aninvestigation of ACORN and its eventual demise.60 While this examplemay give some observers pause, particularly when they are sympathetic tothe persons or organizations who are targeted for investigation, it is diffi-cult to dispute that these recordings potentially contributed to publicdiscourse.61

was lifted and the permanent injunction denied about a month later. See Order to ShowCause Re Preliminary Injunction (Aug. 21, 2015), http://media.bizj.us/view/img/6787472/21-order-denying-preliminary-injunction.pdf [http://perma.cc/7YBU-8QJG].

57. ACORN Workers Caught on Tape Allegedly Advising on Prostitution, CNN (Sept.11, 2009, 10:21 AM), http://www.cnn.com/2009/POLITICS/09/10/acorn.prostitution/[http://perma.cc/2LHY-XT8Y]. To be sure, O’Keefe, the producer of the ACORN investi-gation, has been accused of unsavory practices. See Catherine Thompson, Ex-Staffer SlamsJames O’Keefe: He Crossed a Line with Vile “Kill Cops” Stunt, Talking Points Memo:Muckraker (Mar. 20, 2015, 6:00 AM), http://talkingpointsmemo.com/muckraker/james-okeefe-kill-cops-script [http://perma.cc/YM3J-4TAZ] (referencing suit brought againstO’Keefe for wrongful termination and defamation). O’Keefe has even been convicted ofbreaking into a U.S. Senator’s office. Christina Wilkie, ACORN Filmmaker James O’KeefeSentenced in Sen. Mary Landrieu Break-In, Hill (May 26, 2010, 11:15 PM),http://thehill.com/capital-living/in-the-know/100105-filmmaker-okeefe-sentenced-in-sen-mary-landrieu-break-in [http://perma.cc/9R2Y-7TCF]. But the basic point remains—hisvideo recordings constituted profoundly powerful political speech.

58. Vera v. O’Keefe, No. 10-CV-1422-L(MDD), 2012 WL 3263930, at *1 (S.D. Cal.Aug. 9, 2012).

59. Id. at *2.60. See id. (“Plaintiff claims that his reputation is ‘in the garbage’ since the release of

the videotape and he has been unsuccessful finding employment after the ACORNincident.”).

61. In O’Keefe’s case, as with the CMP, note that there were claims that the videorecordings were edited in ways that might have actually misrepresented the interactions herecorded. See Conor Friedersdorf, Still Making an Innocent Man Look Bad, Atlantic (Dec.29, 2010), http://www.theatlantic.com/daily-dish/archive/2010/12/still-making-an-innocent-man-look-bad/177964/ [http://perma.cc/JAV4-GNC4] (emphasizing “misleading”nature of videos, making “innocent man look as if he was complicit in a plot to trafficunderage girls across the border”). To the extent that this was the case, while this Articlewould still regard the recording as speech and therefore covered by the First Amendment,the recording’s exhibition might not be protected to the extent that it conveyed false ordefamatory information. Indeed, independent investigations have concluded that thevideo was edited in a way that created a misleading view of the ACORN employees’ actions.See Cal. Dep’t of Justice, Office of Attorney Gen., Report of the Attorney General on theActivities of ACORN in California 14–17 (Apr. 1, 2010), http://ag.ca.gov/cms_attachments/press/pdfs/n1888_acorn_report.pdf [http://perma.cc/AMD8-V6UK] (noting “facts . . .strongly suggest[] O’Keefe and Giles[] violated state privacy laws”).


The utility of video recordings may also manifest itself through spon-taneous, rather than deliberate, acts of recording. One example that hasrecently received great attention is citizens’ efforts to record police offic-ers’ conduct as they carry out their official duties.62 One of the most well-known instances of this was when a bystander video recorded police offic-ers beating Rodney King in Los Angeles in the early 1990s.63 More re-cently, of course, the police’s use of deadly force on Eric Garner and WalterScott was captured on video, though the two deaths resulted in differentlegal outcomes.64 Video recording’s unique ability to accurately docu-ment interactions can provide individuals with evidence that may contra-dict official accounts of an event or perhaps deter ex ante any officialmisconduct from occurring simply by its availability. On the other side,some police departments and policymakers have advocated requiring of-ficers and their vehicles to be equipped with mounted video cameras toprotect themselves from inaccurate or fabricated allegations of their ownconduct.65 The recent dispute over the disclosure of police camera videos

62. See, e.g., David Murphy, Comment, “V.I.P.” Videographer Intimidation Protection:How the Government Should Protect Citizens Who Videotape the Police, 43 Seton Hall L.Rev. 319, 350–56 (2013) (providing “model legislative framework for protecting videogra-phers against police harassment”); Andrea Peterson, Yes, You Can Record the Police. AndMaybe the Police Should Be Recording the Police., Wash. Post (Aug. 14, 2014), http://www.washingtonpost.com/news/the-switch/wp/2014/08/14/yes-you-can-record-the-police-and-maybe-the-police-should-be-recording-the-police/ [http://perma.cc/4VLW-YR7B] (dis-cussing legality and benefits of recording police actions).

63. See Sa’id Wekili & Hyacinth E. Leus, Police Brutality: Problems of Excessive ForceLitigation, 25 Pac. L.J. 171, 181–82 (1994) (“Had it not been for the secretly taped videoevidence, the case of Rodney King may never have found its way to the media or thecourtroom.”); Jim Kavanagh, Rodney King, 20 Years Later, CNN (Mar. 3, 2011, 8:56 AM),http://www.cnn.com/2011/US/03/03/rodney.king.20.years.later/ [http://perma.cc/FDN5-5N2G] (describing King case and its aftermath).

64. Compare Aaron Paxton Arnold, The Real Whistle-Blower in Police Brutality, CNN(Aug. 7, 2015, 3:35 PM), http://www.cnn.com/2015/08/07/opinions/arnold-police-shootings/ [http://perma.cc/Q7J9-BPAD] (arguing camera phones are largely responsi-ble for indictment of police officer who shot and killed Walter Scott), with David A.Graham, A Year After Eric Garner’s Death, Has Anything Changed?, Atlantic (July 17,2015), http://www.theatlantic.com/politics/archive/2015/07/eric-garner-anniversary/398837/ [http://perma.cc/TT75-LVUR] (noting officers who killed Eric Garner, whosedeath was caught on camera, and Michael Brown were not indicted for murder).

65. See, e.g., Mark Potter & Tim Stelloh, Michael Brown’s Death in Ferguson RenewsCalls for Body Cameras, NBC News (Aug. 17, 2014, 5:54 PM), http://www.nbcnews.com/storyline/michael-brown-shooting/michael-browns-death-ferguson-renews-calls-body-cameras-n182751 [http://perma.cc/E6LF-4QQM] (discussing police use of body cameras).For similar reasons, there have been increasing calls from both the law enforcement com-munity and the criminal defense bar to videotape police interrogations. See Thomas P.Sullivan, The Police Experience Recording Custodial Interrogations, Champion Mag.,Dec. 2004, at 24 (noting support for videotaped interrogations across spectrum of interestgroups). See generally Thomas P. Sullivan, Recent Developments, Electronic Recording ofCustodial Interrogations: Everybody Wins, 95 J. Crim. L. & Criminology 1127, 1129 (2005)(arguing benefits of video-recorded interrogations include deterring police misconductand either confirming or rebutting suspects’ claims that officers used coercive interro-gation techniques).


of the shooting of Laquan McDonald has underscored the urgency ofthis debate.66

Yet another context in which images inform public discourse is whenthey are leaked. That is, even when the act of image capture is not part ofa deliberate political or social movement or a reaction to a spontaneousevent, the disclosure of recorded images can lead to public debate andreforms in the law. Particularly powerful examples of this are the publicoutrage caused by leaked video and photographic evidence of membersof the U.S. military mistreating prisoners of war at Abu Ghraib prison inIraq67 and the similar reaction to some of the video recordings of U.S.combat operations released by WikiLeaks.68

2. Recording Serves the Broader Search for Truth. — The expressive valueof recording is not limited to partisan politics or public policy controver-sies. Video recording also functions as a manner of revealing broadertruths, ranging from the pragmatic—such as law enforcement and jour-nalistic investigations—to the aesthetic and moral—such as promotingdiscourse about the manner in which our society treats animals.

Law enforcement and other government investigators often incorpo-rate video recordings into their investigations of criminal and other un-lawful private conduct.69 Of course, when government agents use secretvideo recordings, they typically must comply with constitutional and stat-utory limits on their investigation derived from the Fourth Amendment.70

66. See Sam Levine, Here’s How the Laquan McDonald Shooting Differs from WhatPolice Said Happened, Huffington Post (Nov. 25, 2015, 10:56 AM), http://www.huffingtonpost.com/entry/laquan-mcdonald-shooting-video_us_5655ca26e4b08e945fea9488 [http://perma.cc/3BV6-P2XD] (last updated Nov. 27, 2015) (comparing police accounts ofincident with newly available video). To view this video, see Video Shows Cop Shoot Teen,CNN (Nov. 25, 2015, 3:35 PM), http://www.cnn.com/videos/us/2015/11/25/laquan-mcdonald-chicago-shooting-dashcam-video-orig-mg.cnn/video/playlists/shooting-death-of-laquan-mcdonald/ [http://perma.cc/26NP-UMGR].

67. See Seymour M. Hersh, Torture at Abu Ghraib, New Yorker (May 10, 2004),http://www.newyorker.com/magazine/2004/05/10/torture-at-abu-ghraib [http://perma.cc/89YH-UPHL] (referring to fact that government report of abuse at Abu Ghraib prisondid not include photographs and videos taken by soldiers because of their sensitivenature).

68. See Collateral Murder, WikiLeaks, http://collateralmurder.wikileaks.org [http://perma.cc/S7G8-3PLK] (last visited Jan. 27, 2016) (providing video of U.S. military troopskilling reporters and civilians); see also Noam Cohen & Brian Stelter, Iraq Video BringsNotice to a Web Site, N.Y. Times (Apr. 6, 2010), http://www.nytimes.com/2010/04/07/world/07wikileaks.html (on file with the Columbia Law Review) (describing news coverageand media attention given to WikiLeaks and Collateral Murder video).

69. See infra notes 70–76 and accompanying text (discussing cases that illustrate thispractice).

70. See, e.g., United States v. Mesa-Rincon, 911 F.2d 1433, 1442–43 (10th Cir. 1990)(holding video surveillance must be “least intrusive [method] available to obtain theneeded information” to comply with Fourth Amendment); United States v. Torres, 751F.2d 875, 882 (7th Cir. 1984) (holding video surveillance must comply with FourthAmendment).


When an undercover officer makes a video recording of a suspect whopermits her to be present, it is not considered to be a search or seizuresubject to Fourth Amendment restrictions because the suspect does nothave a reasonable expectation of privacy in the recorded acts.71 Thelower federal courts have applied a more stringent standard, however,when government officials seek a warrant under Rule 41 of the FederalRules of Criminal Procedure to plant a surveillance video camera at thelocation of suspected criminal activity.72 There, courts have suggestedthat in order to balance the need for video recording with the intrusive-ness of the search, those officials must show that all other “reasonable”investigatory methods would not suffice in a particular investigation.73

Nonetheless, courts have recognized that in many types of investiga-tions, video recording is a superior tool for fact-finding than conven-tional methods. For example, the Tenth Circuit held that video record-ing was a necessary tactic for investigating a counterfeiting operation be-cause the machinery used would drown out a mere audio recording andcounterfeiting is a form of criminal activity that can take place withoutany verbal communication.74 Similarly, a decision by the Second Circuitnoted that videos were an essential investigative method to uncover ille-gal loan sharking because “[l]ike much of organized crime, [loan shark-ing] operated behind an enforced wall of secrecy.”75 Moreover, “[f]rom alaw enforcement perspective, video surveillance not only enhances inves-tigative capabilities, but also prompts a sharp decrease in the strain on in-vestigative resources.”76

Investigative journalists, too, have used video recordings, often sur-reptitiously obtained, to inform the public about issues of grave publicconcern.77 An example that has received great attention from legal schol-ars is the work of two reporters from the ABC News program PrimetimeLive to investigate the grocery store chain Food Lion.78 The reportersobtained jobs with two different Food Lion stores and thereafter used

71. See United States v. White, 401 U.S. 745, 751 (1971) (concluding undercoveragent’s act of recording did “not invade the defendant’s constitutionally justifiable expec-tations of privacy”).

72. See Mesa-Rincon, 911 F.2d at 1443–44 (announcing standard for review of videosurveillance authorization and comparing with precedent).

73. Id.74. Id. at 1444–45.75. United States v. Biasucci, 786 F.2d 504, 511 (2d Cir. 1986).76. Mona R. Shokrai, Double-Trouble: The Underregulation of Surreptitious Video

Surveillance in Conjunction with the Use of Snitches in Domestic GovernmentInvestigations, 13 Rich. J.L. & Tech. 1, 8 (2006).

77. See, e.g., Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1347–48 (7th Cir. 1995)(arising from news station’s uncovering ophthalmic clinic’s overuse of cataract surgery forguaranteed Medicare payment); Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 30 F.Supp. 2d 1182, 1185 (D. Ariz. 1998), aff’d, 306 F.3d 806 (9th Cir. 2002) (discussingundercover investigation into medical laboratory’s errors in pap smear readings).

78. Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 510 (4th Cir. 1999).


hidden video cameras to document and confirm what sources had ini-tially reported—that Food Lion’s food-handling practices were highlyunsanitary and probably illegal.79 The Fourth Circuit noted:

The broadcast included, for example, videotape that appearedto show Food Lion employees repackaging and redating fishthat had passed the expiration date, grinding expired beef withfresh beef, and applying barbeque sauce to chicken past itsexpiration date in order to mask the smell and sell it as fresh inthe gourmet food section. The program included statements byformer Food Lion employees alleging even more seriousmishandling of meat at Food Lion stores across several states.80

Though investigations such as this may lead to concrete policy debatesand therefore also support democratic self-governance, they may also pro-voke thought and expression about larger moral questions, such as busi-ness ethics.

Perhaps a clearer example of this arises in the context of undercoverinvestigations by animal-rights activists. As already discussed, some of thevideos produced by such activists have been critical to advancing publicdiscourse and influencing policy reforms.81 Additionally, the widespreaddissemination of these and other similar videos importantly informs mor-al debates about the manner in which we relate to nonhuman animals,including whether people should reduce or eliminate animal productsfrom their diets. Indeed, according to one report, most Americans whoare converting to veganism and vegetarianism have been influenced by“how much we have learned about commercial farming and animal treat-ment over the last five years.”82

3. The Unique Contributions of Recording to Enhancing Truth and Promot-ing Public Discourse. — “Photography is truth. The cinema is truth 24times per second.”83

In terms of informing public discourse and enhancing debate overpolitical, social, moral, and philosophical issues, video recording has atleast two particular advantages over other communication media—availa-

79. Id.80. Id. at 511.81. See supra notes 48–50 and accompanying text (discussing public and legislative

response to undercover videos of animal abuses at slaughterhouse in Chino, California).82. Nadine Watters, 16 Million People in the US Are Now Vegan or Vegetarian!, Raw

Food World, http://news.therawfoodworld.com/16-million-people-us-now-vegan-vegetarian [http://perma.cc/6E5P-6HNR] (last visited Jan. 27, 2016) (explaining impact under-cover videos of animal abuse at slaughterhouses have had on America’s trend toward ve-ganism and vegetarianism).

83. La Petit Soldat (Les Productions Georges de Beauregard 1963) (translated byauthors) (“La photographie, c’est la vérité et le cinéma, c’est vingt-quatre fois la vérité parseconde.”).


bility and accuracy.84 In terms of the former, as this Article has alreadyargued, technological advances have made video recording accessible toa broader range of people than conventional forms of expression and ata relatively low cost.85 Understanding video image capture as a form ofexpression covered by the First Amendment embraces a populist under-standing of the value of expression. As Professor Kreimer argues, the ad-vent of video recording means that “the marginal cost of the physicalcomposition and transmission of speech has dropped to close to zero.”86

From a First Amendment theory perspective, this may be all themore important since this is an era when the Supreme Court has recog-nized broad free speech rights for large corporations.87 It seems particu-larly critical, then, to ensure that the marketplace of ideas is open tothose with fewer resources and opportunities to occupy the public spaceof expression.88 The confluence of expanding corporate speech rightsand the wielding of corporate power to persuade government officials to“protect” businesses from speech antithetical to their political and com-mercial interests has produced an acute opportunity to focus on the rightto record.89 As Professor Jane Bambauer notes, “As smart phones andother recording devices become ubiquitous, corporations have come tothe well, too, pressing legislators to create or strengthen laws that protecttheir interests in secrecy.”90

The second advantage of recording is that video records of eventsand behavior are likely to be much more accurate than other means ofconveying information. Not only do these speech acts inform public dis-course, but they do so in an unusually effective way.91 It is not uncommonfor interactions between government officials and private citizens to re-sult in disputes over what actually occurred, generating conflicting testi-

84. Professor Kreimer also embraces these considerations as factors that shouldweigh in favor of considering image capture to be covered by the First Amendment.Kreimer, supra note 24, at 386.

85. See supra text accompanying notes 34–36 (describing wide availability of videocameras and their impact on modern democracy).

86. Kreimer, supra note 24, at 386.87. See Citizens United v. FEC, 558 U.S. 310, 365 (2010) (“No sufficient governmen-

tal interest justifies limits on the political speech of non-profit or for-profit corporations.”).88. See Jeffrey M. Blum, The Divisible First Amendment: A Critical Functionalist

Approach to Freedom of Speech and Electoral Campaign Spending, 58 N.Y.U. L. Rev.1273, 1323–24 (1983) (discussing Court’s historical emphasis on low-cost forms of speechsuch as leafleting in order to protect “‘poorly financed causes of little people’” (quotingMartin v. City of Struthers, 319 U.S. 141, 146 (1943))).

89. See Bambauer, supra note 28, at 60 (discussing business efforts to secure dataprotections from government).

90. Id.91. Professor Kreimer makes the point in this way: “[I]mages are often more salient

than verbal descriptions. Their apparently self-authenticating character gives them dispar-ate authority, and their rhetorical impact encompasses the proverbial ‘thousand words.’”Kreimer, supra note 24, at 386.


mony from differing eyewitness accounts.92 Video recordings can validateor undermine these accounts and help resolve the conflict not only forthe parties immediately involved but also in the interests of the broadercommunity. They are like instant-replay review for real-world events. TheSupreme Court has even relied on a video recording to decide that anofficer’s behavior during a high-speed chase was not unreasonable.93

The point is not only that the accuracy of video increases the credi-bility and reliability of expression but also that it may allow more infor-mation to be translated quickly and in a manner unfiltered by a third-party account. To illustrate this benefit, this Article draws on one of themost well-known examples of an undercover investigation by Upton Sinclair,who gained access to meatpacking facilities by disguising himself as aworker to gather information that he hoped would expose the many un-fortunate ways in which meatpacking companies treated their employees;this information later became the focus of his path-breaking novel, TheJungle.94 To protect his cover, Sinclair could not be seen taking notes ofhis observations. Rather, he walked through the meatpacking plant,“memorizing details of what he saw, then rushing back to his room towrite everything down.”95 Had Sinclair lived in this era, his accounts ofthe events would have not only been easier to obtain; they would havealso essentially been self-authenticating.96 Thus, as with the police inves-tigations discussed earlier, secret video recordings have the advantage ofhelping to acquire accurate and useful information and protecting theidentity of undercover investigators.

B. Video Recording as a Component of Expression

From a doctrinal standpoint, understanding video recording as speechmust begin with a look at the manner in which the exhibition and view-ing of such recordings communicates. While the First Amendment pro-tects the freedom of “speech,” the concept of speech is not self-defining. Ra-

92. See, e.g., Dueling Narratives in Michael Brown Shooting, CNN (Sept. 16, 2014,6:19 AM), http://www.cnn.com/2014/08/19/us/ferguson-michael-brown-dueling-narratives/ [http://perma.cc/5YVZ-KM9P] (discussing disputed witness accounts to incidentthat was not caught on camera); Levine, supra note 66 (comparing police accounts of inci-dent with video footage).

93. Scott v. Harris, 550 U.S. 372, 386 (2007) (discussing importance of videotape ofincident and holding “[Deputy] Scott’s attempt to terminate the chase by forcingrespondent off the road was reasonable, and Scott is entitled to summary judgment”).

94. Upton Sinclair, The Jungle (James R. Barrett ed., Univ. of Ill. Press 1988) (1906);see generally Arthur Weinberg & Lila Weinberg, The Muckrakers 205–06 (1961)(describing how Sinclair gathered access to information). Although The Jungle becamemore famous for exposing the unsanitary practices of the meatpacking industry, Sinclair’sobjective was to investigate and write about the plight of mistreated workers. Leon Harris,Upton Sinclair: American Rebel 70–71 (1975) (emphasizing Sinclair dedicated book to“Workingmen of America”).

95. Anthony Arthur, Radical Innocent: Upton Sinclair 49 (2006).96. Kreimer, supra note 24, at 386 (characterizing images as “self-authenticating”).


ther, the Supreme Court has struggled for decades to provide a soundanalytical framework for determining which activities count as speechand which do not. In some cases, the status of conduct as expression isundisputed, as in the case of giving a speech or publishing and distrib-uting a pamphlet bearing a printed message.97 In cases involving the ap-plication of the First Amendment to nontraditional forms of expression,the inquiry is more complex. Typically, though not always, the Court fo-cuses on whether a speaker is engaged in conduct that demonstrates thatshe has the intent to convey a specific message that is likely to be under-stood by listeners.98 The focal point of the doctrinal coverage analysis isthe communicative nature of the conduct. The following discussion breaksvideo recording down into the distinct elements involved in the acts ofmaking and watching the recordings and explains the communicativeaspects of each. It then analyzes how, under current First Amendmentdoctrine, video recording is more like speech than it is like conduct.

1. Recording Videos as Expression. — Some videos depict a classic formof recognized expression, such as a speech by a political candidate. Suchvideos are tantamount to a pamphlet, a flyer, or perhaps just a moretransferable version of presenting a speech; the video conveys a messagefrom the speaker in a form that would be widely acknowledged asspeech. But of course, a video can also display images that do not involveverbal communication. Imagine, for example, a store’s security camera,which records the comings and goings of customers over the course of anordinary business day. The images exhibited provide information aboutwhat actually occurred during that day but are not expressive in the ordi-nary sense. Perhaps, the camera might catch a conversation or two be-tween clerk and customer, but even then, the spoken words are likely tobe incidental, rather than central, to whatever viewers interpret the videoto communicate. Videos can also exhibit art in concrete or abstract forms.Commercially produced movies, for example, may convey a story, includ-ing a plot, dialogue, musical score, and perhaps other types of implicitmessages or symbolism.99 Documentaries often both convey factual infor-mation and expose their audiences to social issues that might valuably

97. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933–34 (1982) (holdinggiving speeches is protected by First Amendment); Org. for a Better Austin v. Keefe, 402U.S. 415, 419 (1971) (“This Court has often recognized that the activity of peacefulpamphleteering is a form of communication protected by the First Amendment.”).

98. See infra notes 119–122 and accompanying text.99. See, e.g., Jason Johnson, Zootopia: Yes, Disney Made a Movie About White

Supremacy and the War on Drugs, The Root (Mar. 11, 2016, 1:12 PM), http://www.theroot.com/articles/culture/2016/03/zootopia_yes_disney_made_a_movie_about_racism_but_with_talking_animals.html [http://perma.cc/TE25-NUY8] (asserting Zootopia reflects deepermessage about race, Drug War, and discrimination).


contribute to public discourse. Abstract forms of cinematic art may con-vey something or nothing at all.100

Several Supreme Court cases have expressly or implicitly recognizedthat the exhibition of video recordings is a form of speech covered by theFirst Amendment. In Joseph Burstyn, Inc. v. Wilson, the Court reviewed acommercial film distributor’s constitutional challenge to a state agency’srevocation of its license to exhibit a controversial motion picture on theground that the film was sacrilegious.101 Rejecting earlier decisions inwhich it had suggested that commercial film exhibitions were not on parwith speech by the press or concerning public opinion, the Court heldthat movies are covered by the First Amendment. As it observed, “[M]o-tion pictures are a significant medium for the communication of ideas.They may affect public attitudes and behavior in a variety of ways, rang-ing from direct espousal of a political or social doctrine to the subtleshaping of thought which characterizes all artistic expression.”102

In short, “[t]he importance of motion pictures as an organ of publicopinion is not lessened by the fact that they are designed to entertain aswell as to inform.”103 Such reasoning forecloses any argument that eitherthe commercial or entertainment aspect of a movie’s exhibition dilutesits expressive value or claim to First Amendment protection.

2. Watching Videos as a Component of Speech. — Moreover, governmentrestrictions of video recordings implicate the First Amendment rights oftheir audiences no less than those of filmmakers. In Stanley v. Georgia, theCourt invalidated the conviction of a man for the possession of obscenefilms in his home.104 Although the films were conceded to be obsceneand therefore otherwise censorable under the law, the Court noted thatthe government cannot legitimately reach into the privacy of one’s hometo control what people choose to watch.105 It viewed this as not only a re-

100. See Museum of Modern Art, Gallery Label for Andy Warhol, Empire (1964),http://www.moma.org/collection/works/89507 [http://perma.cc/BWF5-LKR6] (lastvisited Jan. 27, 2016) (noting point of Andy Warhol’s film Empire was to “see time go by”);Erin Whitney, 17 Andy Warhol Films You Probably Haven’t Heard of but Should Know,Huffington Post (Aug. 6, 2015, 11:08 AM), http://www.huffingtonpost.com/2014/08/06/andy-warhol-films_n_5652672.html [http://perma.cc/BFE2-L4EM] (providing brief sum-maries of seventeen Andy Warhol films that are all abstract or symbolic artistic representa-tions); cf. Blocher, supra note 28, at 1433–56 (describing First Amendment protectionsgiven to meaningless or abstract works); Tushnet, supra note 28 (exploring First Amendmentprotections given to artwork).

101. 343 U.S. 495 (1952).102. Id. at 501.103. Id.104. 394 U.S. 557, 568 (1969) (“We hold that the First and Fourteenth Amendments

prohibit making mere private possession of obscene material a crime.”).105. Id. at 565 (“Whatever may be the justifications for other statutes regulating ob-

scenity, we do not think they reach into the privacy of one’s own home.”).


striction on speech but on the autonomy of thought.106 “If the FirstAmendment means anything,” the Court explained, “it means that aState has no business telling a man, sitting alone in his own house, whatbooks he may read or what films he may watch.”107 Indeed, to the extentthat the Court’s cases have consciously and categorically excluded legallyobscene movies from constitutional protection, its decisions imply thatmovies are speech.108 That is, there is no dispute that even obscene filmshave a communicative element.109

These examples illustrate that video recordings express content inways that are communicative and that watching, listening to, and con-suming video recordings is covered by the First Amendment such thatgovernment regulation of their exhibition or viewing implicates free-speech concerns.110

3. Recording Video as Fully Protected Speech—Not Mere Conduct. — Tosay that the production, exhibition, and viewing of video recordings iscovered by the First Amendment does not necessarily lead to the conclu-sion that the regulation of the act of video recording also implicates con-stitutional free-speech concerns. Indeed, the argument that video record-ing is a form of speech is not entirely intuitive, as this conduct involvesreceiving or gathering—rather than producing, editing, or disseminat-ing—the recording’s content.111 Yet a number of lower federal courtshave concluded that state interference with the capturing of video or stillimages raises First Amendment issues, at least in certain circumstances.

Some federal courts, for example, have concluded that the act of re-cording the conduct of public officials, including law enforcement offic-

106. Id. at 566 (“Our whole constitutional heritage rebels at the thought of giving gov-ernment the power to control men’s minds.”).

107. Id. at 565. But see Osborne v. Ohio, 495 U.S. 103, 111 (1990) (upholding lawcriminalizing mere possession of child pornography).

108. See, e.g., Jacobellis v. Ohio, 378 U.S. 184, 187 (1964) (noting although “[m]otionpictures are within the ambit of the constitutional guarantees of freedom of speech and ofthe press[,] . . . obscenity is not subject to those guarantees”).

109. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 59–60 & n.10 (1973) (argu-ing obscene material creates indecent society); Margo Kaplan, Sex-Positive Law, 89 N.Y.U.L. Rev. 89, 102–06 (2014) (outlining arguments that obscenity promotes criminal activityand encourages unwanted beliefs, thoughts, and emotions); see also Miller v. California,413 U.S. 15, 23–24 (1973) (“We acknowledge, however, the inherent dangers of undertak-ing to regulate any form of expression. State statutes designed to regulate obscene materi-als must be carefully limited.”).

110. The same arguments would attach to the argument that other forms of record-ing, as well as their later display, implicate free speech concerns. So for example, thisArticle’s arguments would extend to characterizing still photography, audio recording,drawings of sketches, and taking of notes as forms of expression covered by the FirstAmendment.

111. Just a few years ago, Professor Kreimer seemed to recognize his assertion that theFirst Amendment included some protections for recording as somewhat radical. SeeKreimer, supra note 24, at 369 (“Even proponents of the virtues of image capture tend tobe tentative in asserting its protected status in First Amendment theory and doctrine.”).


ers performing their duties112 and officials conducting public meetings,113

is covered by the First Amendment. At the same time, however, other fed-eral courts have rejected claims that government interference with videorecordings and other types of image capture raises concerns about freeexpression. The principal objection to the claim that recording is a typeof constitutionally protected expression is that the act of capturing im-ages is a form of conduct rather than speech.114 Still other courts havelimited governmental liability for interference with recording of the actsof police officers not on the merits but on the grounds that the law es-tablishing a First Amendment right to record is not yet clearly estab-lished.115 But Professor Kreimer has observed that while numerous courtsand commentators have suggested that image capture is a type of speechimplicating the First Amendment, they have largely done so through as-sertion rather than comprehensive analysis.116 The same could be said forthose courts that have rejected such claims.

112. See, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (“The First Amendmentissue here is, as the parties frame it, fairly narrow: is there a constitutionally protected rightto videotape police carrying out their duties in public? Basic First Amendment principles,along with case law from this and other circuits, answer that question unambiguously inthe affirmative.”).

113. See, e.g., Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 1999) (explaining plaintiffjournalist did nothing wrong when he filmed public meeting: “[H]e was in a public areaof a public building; he had a right to be there; he filmed the group from a comfortableremove; and he neither spoke to nor molested them in any way”); Blackston v. Alabama,30 F.3d 117, 120 (11th Cir. 1994) (finding plaintiffs stated claim that prohibition of filmingpublic committee was First Amendment violation).

114. See, e.g., D’Amario v. Providence Civic Ctr. Auth., 639 F. Supp. 1538, 1541 (D.R.I.1986) (stating plaintiff’s desire to film did not implicate First Amendment because it was“conduct, pure and simple”).

115. These cases have been dismissed on the affirmative defense of qualified immun-ity. See, e.g., Lawson v. Hilderbrand, No. 3:13-CV-00206(JAM), 2015 WL 753708, at *13 (D.Conn. Feb. 23, 2015) (“As of November 2010, the law of the Second Circuit was not clearlyestablished to recognize a right under the First Amendment to record police conduct.”);Ortiz v. City of New York, No. 11 Civ. 7919(JMF), 2013 WL 5339156, at *3–4 (S.D.N.Y. Sept.24, 2013) (explaining police officers were entitled to qualified immunity on interferenceclaim “because neither the Supreme Court nor the Second Circuit has addressed theright” to record police conduct); Mesa v. City of New York, No. 09 Civ. 10464(JPO), 2013WL 31002, at *25 (S.D.N.Y. Jan. 3, 2013) (“[T]he right to photograph and record police isnot clearly established as a matter of constitutional law in this Circuit . . . . [N]o SecondCircuit case has directly addressed the constitutionality of the recording of officers en-gaged in official conduct.”). But see Glik, 655 F.3d at 84–85 (finding First Circuit had con-clusively decided citizens have protected First Amendment right to film government offi-cials in public spaces); Gaymon v. Borough of Collingdale, No. 14–5454, 2015 WL 4389585,at *9 (E.D. Pa. July 17, 2015) (comparing plaintiff’s act of recording police officer on ownproperty to “voicing disagreement about the officers’ actions,” which Supreme Court hasheld is protected by First Amendment).

116. Kreimer, supra note 24, at 368 (arguing cases recognizing image capture as speechimplicated by First Amendment “assert, rather than argue for, First Amendment protection”).


The notion that recording is conduct and not speech is at the veryleast overstated.117 As many First Amendment theorists have observed, allspeech is conduct—whether it involves writing words on a page, carryinga picket sign, shouting a protest chant, or burning a flag.118 DeterminingFirst Amendment coverage, therefore, requires a more precise analysisabout the values underlying the protection of speech and the function ofthe particular conduct. One approach that the Court has sometimes usedto identify what forms of conduct count as speech is the test from Spencev. Washington, a case challenging a person’s conviction for placing peacesigns made out of black tape on an American flag and displaying it pub-licly.119 In concluding that Spence’s conduct was speech, the Court sug-gested that nonverbal conduct is protected by the First Amendmentwhen the speaker has “[a]n intent to convey a particularized message . . . andin the surrounding circumstances the likelihood was great that the mes-sage would be understood by those who viewed it.”120 As applied to videorecording, it is not clear how recording (again, as distinguished from dis-playing that recording) conveys any message, much less a particularizedone.

While the Spence test has played an important role in First Amendmentjurisprudence, it seems most unlikely that the Court will decide the ques-tion of a video recording’s status under the First Amendment based onits holding. The Court’s reliance on Spence has been inconsistent and se-lective.121 Moreover, as Professor Kreimer points out, the Court has typi-cally applied the requirement that the action must convey a message inorder to count as speech only to conduct that is not inherentlyexpressive.122

Another argument for counting video recording as speech is that, innearly all circumstances, the government’s only conceivable reason forregulating such recording must necessarily be to prevent the recording’scontents from being viewed, either by the recorder or by third parties. As

117. But see Bhagwat, Producing Speech, supra note 28, at 1035 (arguing conduct-producing speech must receive First Amendment protection but such protection shouldnot be as strong as those for “actual communication”).

118. See, e.g., Edward J. Eberle, Cross Burning, Hate Speech, and Free Speech inAmerica, 36 Ariz. St. L.J. 953, 964 (2004) (“[Q]uintessential speech actions like readingand writing, speaking and listening involve certain physical motor conduct.”).

119. 418 U.S. 405, 405 (1974).120. Id. at 410–11 (emphasis added).121. Chen, Instrumental Music, supra note 28, at 389–90 (“But the Court has not rig-

idly adhered to the Spence test.”).122. Kreimer, supra note 24, at 372 (“[T]he requirement of identifying a ‘message

conveyed’ is generally applied by the Court only to conduct that is not considered ‘inher-ently expressive.’”). That is not an entire answer to those who do not regard recording asspeech, however, as they have made the claim that image capture, as distinguished fromthe broadcasting of images, involves the collection of data or information rather than thecommunication of ideas. Thus, they might regard the Spence test as wholly applicable pre-cisely because recording is not inherently expressive.


some First Amendment theorists have argued, the freedom of expressioncan best be understood by examining the government’s reasons for regu-lation.123 Professor Larry Alexander suggests, for example, that “[f]ree-dom of expression is implicated whenever an activity is suppressed or pe-nalized for the purpose of preventing a message from being received.”124

To be sure, there may be limited circumstances in which the govern-ment might have a nonspeech-related interest in banning some forms ofrecording. For instance, suppose that the government prohibited flash pho-tography at a publicly owned theater, not to protect the property rights inthe performance (which would be speech),125 but to prevent the per-formers from being injured because they were distracted by the light. Orsuppose a wildlife agency prohibited any visual recording of an endan-gered bird species because the disruption caused by video or still cameraswould in itself be upsetting to the birds in ways that caused them harm.Some groups hold the religious belief that having one’s photograph tak-en can steal one’s soul.126 If the state were to prohibit taking photographsor videos of someone who held such beliefs without regard to whetherthe photograph would be viewed or exhibited, it would not necessarilyimplicate the First Amendment because the government interest can becompletely separated from the communicative element of the image capture.

In any of these instances, though they may be relatively rare, theFirst Amendment is not necessarily (though in certain applications mightbe) invoked. The reasoning for this is rooted in the Court’s symbolic ex-pression cases. In United States v. O’Brien, the Court held that nonverbalconduct may not be covered by the First Amendment when “the govern-mental interest [in regulating that conduct] is unrelated to the suppres-sion of free expression.”127 In the previous examples, the government isregulating image capture not because of its communicative element, but

123. See, e.g., Elena Kagan, Private Speech, Public Purpose: The Role of GovernmentalMotive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 443–505 (1996) (noting truepurpose of content-based inquiry is to discern improper, speech-suppressing motives); seealso Alan K. Chen, Statutory Speech Bubbles, First Amendment Overbreadth, and ImproperLegislative Purpose, 38 Harv. C.R.-C.L. L. Rev. 31, 85–87 (2003) [hereinafter Chen,Statutory Speech Bubbles] (urging courts to utilize First Amendment overbreadth analysisto determine government’s motive for regulations).

124. Alexander, supra note 32, at 9; see also Koppelman, supra note 32, at 722 (de-scribing purpose of consumer protection laws as limiting effect of message and not de-pendent on subjective intent of producer).

125. It is axiomatic that a live performance is a form of speech. See, e.g., Schact v.United States, 398 U.S. 58, 62–63 (1970) (holding live theatrical performance is speech);see also infra section II.C.1 (describing potential private property interests in regulatingvideo recording).

126. See Nadine Strossen, Freedom and Fear Post-9/11: Are We Again FearingWitches and Burning Women?, 31 Nova L. Rev. 279, 310 (2007) (“[S]ome Christiansbelieve that photographs violate the Second Commandment’s prohibition on graven im-ages, and some Native Americans believe that photographs steal their souls.”).

127. 391 U.S. 367, 377 (1968).


because of the impact of the very act of recording, regardless of its com-municative aspects. Removing the expressive element of recording, theconduct is the distraction of performers, scaring of birds, or interferencewith religious belief. But as this Article argues, in most instances the gov-ernment’s reasons for banning or limiting recording, however tangible,have to do with its concerns about the content and communication ofthe video recordings. When the government penalizes or prevents the crea-tion or dissemination of a message, the First Amendment is implicated.

C. Video Recording as Conduct Essentially Preparatory to Speech

The previous argument centers on video recording as a species ofexpression itself. But even if one were to reject that claim, there is sup-port for the argument that image capture is conduct that is essential tospeech and is therefore covered by the First Amendment. If the exhibi-tion and viewing of video recordings are speech, then the recordings’creation and production are surely also components of that speech, inthe same way that writing, speaking, or other types of conduct used forexpression are speech even before they are consumed. It has long beenunderstood that government-imposed burdens on the means of produc-ing speech implicate important First Amendment concerns. The oblitera-tion of the means of producing expression endangers free expression noless than the censorship of the speech itself. In prior centuries, this mighthave involved destruction of printing presses;128 today, it might involvesmashing video recorders.129

128. As Justice Scalia has remarked:In any economy operated on even the most rudimentary principles ofdivision of labor, effective public communication requires the speaker tomake use of the services of others. An author may write a novel, but hewill seldom publish and distribute it himself. A freelance reporter maywrite a story, but he will rarely edit, print, and deliver it to subscribers.To a government bent on suppressing speech, this mode of organizationpresents opportunities: Control any cog in the machine, and you canhalt the whole apparatus. License printers, and it matters little whetherauthors are still free to write. Restrict the sale of books, and it matterslittle who prints them. Predictably, repressive regimes have exploitedthese principles by attacking all levels of the production and dissemina-tion of ideas.

McConnell v. FEC, 540 U.S. 93, 251 (2003) (Scalia, J., concurring in part and dissenting inpart), overruled in part by Citizens United v. FEC, 558 U.S. 310 (2010).

129. As Jack Balkin has observed:Old-school speech regulation is normally directed at (1) people, (2)spaces, and (3) predigital technologies of mass distribution. The state ar-rests, detains, or deports people; it controls access to public spaces forassembly and protest; and it monopolizes, regulates, seizes, or destroyscapacities and technologies for publication and transmission like print-ing presses, broadcast facilities, movie projectors, videotapes, handbills,and books.


On numerous occasions, the Supreme Court has recognized that cer-tain types of conduct that are necessarily connected to advancing moretraditional forms of expression must be covered by the First Amendment, lestthe state use the regulation of such conduct as a hidden way of cuttingoff speech.130 Indeed, the Court has recognized that conduct preparatoryto speech is often deserving of full-dress First Amendment protection. Thismeans that even conduct that is not itself speech—such as spending mon-ey to purchase ink and paper131or spray paint,132 or to support a politicalcandidate133—is itself treated as speech. For example, in Citizens United v.FEC, the Court observed that “[l]aws enacted to control or suppress speechmay operate at different points in the speech process.”134 The spendingof money is a precursor to political speech. Indeed, the Court’s campaign-spending cases are all predicated to some degree on the notion that re-strictions on fundraising and spending are limited by the First Amendmentbecause they facilitate subsequent political speech.135 While the bare actof passing money to another is not in itself expressive, the Court has rec-ognized that by protecting the nonspeech means, the political speech endsare also safeguarded.136 Whatever one might think about the applicationof this notion to the campaign finance context, the central logic behindthe principle is sound: The protection of acts that are the necessary ante-cedents to speech is essential to the protection of the speech itself.

Jack M. Balkin, Old-School/New-School Speech Regulation, 127 Harv. L. Rev. 2296, 2306(2014).

130. This is different from the idea that symbolic conduct that expresses a message,such as cross burning, see R.A.V. v. City of St. Paul, 505 U.S. 377, 395–96 (1992), flagburning, see United States v. Eichman, 496 U.S. 310, 312 (1990); Texas v. Johnson, 491U.S. 397, 399 (1989), draft-card burning, see United States v. O’Brien, 391 U.S. 367, 377(1968), or the wearing of a black armband, see Tinker v. Des Moines Indep. Cmty. Sch.Dist., 393 U.S. 503, 505–06 (1969), is covered by the First Amendment. That line of juris-prudence allows the government to regulate nonverbal conduct in content-neutral ways if“the governmental interest [in regulating that conduct] is unrelated to the suppression offree expression.” O’Brien, 391 U.S. at 377.

131. Kreimer, supra note 24, at 381.132. Id. (noting lower courts have also invalidated ordinances criminalizing purchase

or possession of spray paint on First Amendment grounds). See, e.g., Vincenty v. Bloomberg,476 F.3d 74, 78 (2d Cir. 2007) (affirming district court’s grant of preliminary injunctionfinding statute criminalizing possession of spray paint, even for legitimate purposes,violates First Amendment).

133. Citizens United v. FEC, 558 U.S. 310, 365 (2010) (finding corporate expendituresare entitled to First Amendment protection).

134. Id. at 336. Campaign expenditures are protected and are analyzed under strictscrutiny because “[a]ll speakers, including individuals and the media, use money amassedfrom the economic marketplace to fund their speech. The First Amendment protects theresulting speech . . . .” Id. at 351.

135. See, e.g., Buckley v. Valeo, 424 U.S. 1, 19 (1976) (“A restriction on the amount ofmoney a person or group can spend on political communication during a campaignnecessarily reduces the quantity of expression by restricting the number of issues dis-cussed, the depth of their exploration, and the size of the audience reached.”).

136. Id.


Moreover, concerns regarding state-imposed impediments on the pro-duction of speech are not alleviated simply because another alternativeform of expression is left open. State-sponsored burnings of all pens andpaper would implicate the First Amendment even if the state permittedthe foreclosed messages to be communicated orally. Here, too, the SupremeCourt has offered indirect support for the notion that restrictions onvideo recordings might infringe on free speech. In Minneapolis Star &Tribune Co. v. Minnesota Commissioner of Revenue, it struck down a state lawimposing a use tax on ink and paper because it not only was applicablespecially to the press but also because even within the press, the law tar-geted a small group of newspapers.137 Obviously a tax on ink or paperdoes not prohibit newspapers from publishing, but such burdens on actsthat precede the speech itself implicate the First Amendment.138

The analytical premise of these decisions is that expressive activitytypically takes place along a continuum of actions that include not onlydirect expression but also much of the conduct that is a necessary pre-cursor to speech. At one end of the continuum or spectrum lie the mostbasic elements of conduct that are necessary to engage in communica-tion—the purchase of paper, ink, paint, etc. At this end, many things willfall completely off the speech spectrum and will not be covered by theFirst Amendment. For example, buying clothes to participate in a rally orbuying gasoline for the vehicle that a protestor drives to that rally areboth antecedent to speech yet are too attenuated from the actual expres-sive activity to implicate the First Amendment. At the other end of thespectrum is the directly communicative element of the expressive pro-cess—shouting through a megaphone, exhibiting a painting, displaying avideo.

In her important work focusing on whether data is speech, ProfessorBambauer has written persuasively to debunk the distinction between con-veyance and collection of information, explaining that “[i]f the dissemi-nation of mechanical recordings receives First Amendment protection(which it does), then the creation of those same recordings must haveFirst Amendment significance, too.”139 Indeed, rather than framing the

137. 460 U.S. 575, 581 (1983).138. See id. (noting while “[s]tates and the Federal Government can subject newspa-

pers to generally applicable economic regulations,” provision in question “is facially dis-criminatory, singling out publications for treatment that is . . . unique in Minnesota taxlaw”); see also Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2818(2011) (invalidating Arizona law forcing “privately financed candidate to ‘shoulder aspecial and potentially significant burden’ when choosing to exercise his First Amendmentright to spend funds on behalf of his candidacy” (quoting Davis v. FEC, 554 U.S. 724, 739(2008))); Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2663 (2011) (invalidating statute that“on its face burdens disfavored speech by disfavored speakers”).

139. Bambauer, supra note 28, at 61 (footnote omitted). To the extent that the collec-tion of data through recording is speech, as this Article argues, one has to identify a limit-ing principle. Is all data collection speech? Is all data collection done for the purpose ofcommunicating (or communicating on a matter of public concern) speech? These issues


conduct in question as the collection of data, Professor Bambauer recognizesthat the First Amendment should be properly understood to protect thecreation of knowledge.140 Similarly, Professor Kreimer has correctly pointedout the flaw in viewing only the final step of communicating informationor ideas as speech and has emphasized instead that expression involvesmany steps, frequently beginning with the processing of information, theformation of ideas, and then the translation of those ideas and infor-mation into a form that can be understood by others.141 More recently,Professor Ashutosh Bhagwat has cogently observed that the conduct of“producing speech,” as distinct from actual communication, falls withinthe penumbral protection of the First Amendment’s Press Clause.142 Ashe explains, “Regulation of the press is thus regulation of the productionof communication rather than of communication itself, and so the PressClause by its terms protects the production of written speech.”143 The schol-arly commentary is increasingly clear that the protection of the essentialprecursors of expression is necessary to the protection of expressionitself.

Lower federal courts, too, have recognized that First Amendmentprotections must attach to government actions restricting recording be-cause that conduct is necessarily preparatory to speech. In ACLU v. Alvarez,the Seventh Circuit reversed the denial of a preliminary injunctionagainst Illinois’s eavesdropping law, which made it a felony to record aconversation without the consent of all parties to the conversation.144 In

are not of merely idle interest. The state of Wyoming passed civil and criminal laws pro-hibiting the “collection of resource data” such as soil samples or water samples from pub-lic as well as private land. Wyo. Stat. Ann. § 6-3-414 (2015); id. § 40-27-101. Although thatquestion is beyond the scope of this project because this Article argues that recording isclearly on the expressive side of that line, there is need for additional research andthought on this point. Bambauer, supra note 28, at 61.

140. See Bambauer, supra note 28, at 63 (“[This] Article highlights and strengthensthe strands of First Amendment theory that protect the creation of knowledge.”).

141. Kreimer, supra note 24, at 381–82; see also Robert Post, Encryption Source Codeand the First Amendment, 15 Berkeley Tech. L.J. 713, 717 (2000) (“The genre of thecinema . . . encompasses far more than speech acts. It includes materials . . . like projec-tors . . . . If the state were to prohibit the use of projectors without a license, First Amendmentcoverage would undoubtedly be triggered.”). Professor Bambauer refers to Professor Kreimer’scontribution as “call[ing] attention to the unsound distinction” between recording andspeech. Bambauer, supra note 28, at 63; see also Animal Legal Def. Fund v. Otter, 44 F.Supp. 3d 1009, 1023 (D. Idaho 2014) (accepting without controversy that recording isspeech).

142. See Bhagwat, Producing Speech, supra note 28, at 1054–58 (“There is . . . doctri-nal and logical support in the Supreme Court’s jurisprudence for the proposition that theFirst Amendment extends some protection to conduct associated with the production ofspeech. The Press Clause of the First Amendment provides a textual foundation for such aprotection.”).

143. Id. at 1057. This Article focuses its analysis on the Speech Clause, but as ProfessorBhagwat’s insightful analysis demonstrates, similarly forceful claims might be leveledagainst recording restrictions under the Press Clause.

144. 679 F.3d 583, 586 (7th Cir. 2012).


doing so, the court held that the “act of making an audio or audiovisualrecording is necessarily included within the First Amendment’s guaran-tee of speech and press rights as a corollary of the right to disseminatethe resulting recording.”145 The Seventh Circuit also weighed in on thisissue in Desnick v. American Broadcasting Cos., where it examined tortclaims brought against a national television program for its investigationof a commercial ophthalmological surgery center that allegedly encour-aged and conducted unnecessary cataract surgeries.146 In addressing theplaintiffs’ claims, the court recognized that both the “broadcast” and the“production of the broadcast” are protected by the First Amendment.147

The logic of Desnick is that there can be no meaningful distinction be-tween the recording, editing, and ultimate dissemination of a video re-cording. Similarly, in Animal Legal Defense Fund v. Otter, thus far the onlyreported decision addressing the constitutionality of ag-gag laws, a fed-eral district court concluded that state action that directly restricts non-consensual investigative video recordings implicates First Amendmentspeech concerns.148 As the court found,

In fact, an undercover investigator who never publishes a videoafter surreptitiously filming a facility’s operations will likely nev-er be punished for the filming because, in most cases, authori-ties will not become aware of a violation of the statute until avideo is published. Authorities will therefore only enforce thestatute against investigators who choose to publish their videos.A law that expressly punished activists for publishing videos ofagricultural operations would be considered a regulation of speech.As enforcement of [the ag-gag law] will likely have the same ef-fect, it too should be considered a regulation of speech. TheCourt therefore finds that the ban on unauthorized audiovisualrecording restricts speech and is subject to First Amendmentscrutiny.149

Such reasoning is in accord with Professor Kreimer’s central premise:One might try to dissect the medium into its component acts ofimage acquisition, recording, and dissemination and concludethat recording is an unprotected “act” without an audience. Butthis maneuver is as inappropriate as maintaining that the pur-chase of stationery or the application of ink to paper are “acts”and therefore outside of the aegis of the First Amendment.150

Essentially, the point is that protecting speech at the point it is com-municated is worthless if the state can prevent its creation.

145. Id. at 595.146. 44 F.3d 1345 (7th Cir. 1995).147. Id. at 1355.148. 44 F. Supp. 3d 1009, 1020 (D. Idaho 2014) (noting Idaho ag-gag law’s criminaliza-

tion of “audiovisual recordings . . . is a ban on conduct preparatory to speech”).149. Id. at 1023.150. Kreimer, supra note 24, at 381.


A somewhat analogous conclusion comes from the Supreme Court’sdecision in Bartnicki v. Vopper.151 In Bartnicki, the Court held that the me-dia’s publication of the contents of a cellphone conversation regarding ahighly contentious union negotiation was protected by the First Amendment,even where the media had reason to believe that the conversation wasillegally intercepted and recorded.152 The Court rejected an argumentthat the underlying conduct did not implicate the First Amendment. As itsaid,

It is true that the delivery of a tape recording might be regardedas conduct, but given that the purpose of such a delivery is toprovide the recipient with the text of recorded statements, it islike the delivery of a handbill or a pamphlet, and as such, it isthe kind of “speech” that the First Amendment protects.153

It is also important to note that the argument that video recording isspeech does not founder on the claim that there can be no speech with-out an audience. As Professor Kreimer observes, such an argument wouldmean that the government seizure of drafts of manuscripts that had notyet been published or disseminated would not implicate the First Amendmentsimply because they had not yet been read.154 This would also be an over-ly simplistic understanding of what the First Amendment covers, which isnot only expression per se but the autonomy to formulate one’s ideasand beliefs without government control.155 Imposing an audience as aprecondition for defining speech would mean that diaries, journals, andother writings not intended to be read by others would not be speech.156

Moreover, the expansion of the medium and technological develop-ments also break down the distinction between recording and speech. AsProfessor Kreimer wrote:

In the emerging environment of pervasive image capture, thedifference between capturing images and disseminating imageserodes rapidly. Even for skeptics who insist on an audience as acondition of First Amendment protection, images which areimmediately disseminated upon capture (as in live video broad-casting) constitute “speech.” The same would presumably be

151. 532 U.S. 514 (2001).152. See id. at 533–34 (noting to hold otherwise would violate “core purposes of the

First Amendment because it [would] impose[] sanctions on the publication of truthfulinformation of public concern”).

153. Id. at 527.154. See Kreimer, supra note 24, at 377 (“It is simply not the case . . . that an external

audience is or should be a necessary condition of First Amendment protection.”).155. Id.156. See id. at 378–81 (discussing Supreme Court’s extension of First Amendment to

freedom of thought and expression). But see Bhagwat, Producing Speech, supra note 28,at 1040 (noting “peeping tom or a stalker might make a recording of private or publicconduct, without having any intention of later disseminating it” and concluding “[s]peechrequires an audience”).


true in the case of an image immediately conveyed to a singlerecipient.157

For instance, imagine an activist or journalist equipped with thenow-defunct Google Glass, which among other things had the capacity torecord video.158 The proposition that recording for later broadcast orconsumption is not covered by the First Amendment, whereas recordingand simultaneously broadcasting that recording to even a single viewer iscovered cannot seriously be defended. The distinction between record-ing and broadcast is also blurred with the development of new apps thatpermit citizens to easily make videos available for wide viewing. For in-stance, activists have developed apps such as Cop Watch, which uploadsvideos to YouTube immediately upon the completion of the recording,and Mobile Justice Colorado, which similarly emails videos to the ACLUof Colorado.159

To the extent that this Article has made the case that video record-ing is a form of speech or conduct preparatory to speech that is coveredby the First Amendment, it has established only part of the premise ofthe thesis. In the next section, this Article argues that such image captureis speech whether it takes place in public or in private and whether it isdone with or without the consent of the recorded party.

D. Video Recording Counts as Speech Whether It Occurs in Public or Private

None of the elements that support the claim that video image cap-ture is either speech or conduct preparatory to speech, actually differdepending on the location of the recording. That is, the coverage claimremains intact. First, recording images on private property, just as record-ings made in public, advance the fundamental free speech values of pro-moting democracy and facilitating the search for truth. Notably, most ofthe examples drawn upon above involve recordings on private proper-ty—the Romney forty-seven percent video, the recordings of abuse atagricultural facilities, the leaked Abu Ghraib videos and photos, the vid-eo recordings of undercover law-enforcement investigators, and the events

157. Kreimer, supra note 24, at 376.158. See Anjali Athavaley, Google Glass Goes Dark on Its Social Media Accounts,

Reuters (Jan. 26, 2016), http://www.reuters.com/article/us-alphabet-glass-idUSKCN0V42GM[http://perma.cc/5Y4Y-UU98] (noting Google Glass video recording capability and shut-down of its social media accounts).

159. See Farhad Manjoo & Mike Isaac, Phone Cameras and Apps Help Speed Calls forPolice Reform, N.Y. Times (Apr. 8, 2015), http://nytimes.com/2015/04/09/technology/phone-cameras-and-apps-help-speed-calls-for-police-reform.html (on file with the ColumbiaLaw Review) (discussing Cop Watch and interviewing its creator); Tom McGhee, WitnessPolice Wrongdoing? There’s an App for That, Denver Post (Oct. 29, 2015, 3:30 PM),http://www.denverpost.com/news/ci_29043137/witness-police-wrongdoing?-theres-an-app-for-that [http://perma.cc/M59X-LC5K] (describing Mobile Justice Colorado app).


captured by ABC television reporters in the Food Lion investigation.160 Infact, the rationale courts use to uphold law enforcement officers’ use ofsecretly recorded videos is that without such tactics, it would be im-possible to investigate occurrences hidden behind an “enforced wall ofsecrecy.”161

Moreover, nothing about the private setting fundamentally changesthe conceptual understanding of the expressive nature of recording.Video image capture, whether done in public or private, still lies near thefront end of the continuum of activity that inherently involves communi-cation of information and ideas. It typically (though not always) results inthe capturing of information. As such, shutting down its production in-terferes with expression and also impedes the creation of knowledge andinformation.162 It simply cannot be the rule that the state may ban non-disruptive recording of nonintimate matters just because they occur onprivate property. For instance, it would implicate the First Amendment ifthe legislature were to enact a law barring the recording of videos criticiz-ing one or both major political parties regardless of whether the ban ap-plied to public or private recordings.

The same could be said of other laws that restrict some types ofspeech on private property. Imagine that a commercial dairy included anondisparagement clause in its employment contract that barred em-ployees from criticizing the dairy whether they were at work or away fromwork. Violation of such a provision could provide a basis for terminatingan employee. But if the dairy successfully lobbied for the enactment of astate criminal law forbidding dairy industry employees from criticizingtheir employers, whether on the public sidewalk in front of the dairy’sheadquarters or to their closest friends over dinner in their own homes,strict constitutional scrutiny surely is warranted. The restriction on pri-vate speech, no less than the restriction on public speech, implicates theFirst Amendment. The disparagement of a company or a politician doesnot become less speech-like just because it occurs in private.163

Drawing a parallel to other types of speech-preparatory conduct alsoillustrates the thinness of the public–private distinction. It is certainlybeyond question that a law could not constitutionally forbid a personfrom taking written notes about events she observed in a public place,

160. See supra text accompanying notes 43–44, 67, 70–76, 78–80 (providing examplesof recordings on private property).

161. United States v. Biasucci, 786 F.2d 504, 511 (2d Cir. 1986).162. See Bambauer, supra note 28, at 63 (“Expanded knowledge is an end goal of

American speech rights, and accurate information . . . provides the fuel.”).163. The dairy has a right to restrict workplace speech that interferes with its business,

but a law that criminalizes such speech is not a protection of privacy or a forum-selectionlimitation; instead, it is a content-based law targeting speech activities. This reasoning is atleast as true for recording bans. A company also has a right to be free from untruthful andharm-causing disparagement, but this is already protected by defamation law, subject tothe constraints of the First Amendment.


such as a park, sidewalk, or city council meeting. A law that forbade indi-viduals to take notes about observations they make when they are lawfullypresent on private property might also violate the First Amendment, butin the situations where it did not, it would not be because the act of tak-ing notes is not speech or conduct preparatory to speech. It would bebecause the government might have sufficiently powerful interests to ov-erride the speech right, as in the case of industrial espionage, when aperson takes notes about a competitor’s manufacturing processes.

If video recording on private property is not speech, it is at least con-duct preparatory to speech whose regulation therefore implicates theFirst Amendment. Here, again, there is no material difference betweenrecording in public and recording on private property for purposes ofdetermining whether the activity counts as speech. An activity does notlose its speech characteristics depending on where the speech occurs,though it may lose its First Amendment protection under the relevantscrutiny.

* * *Part I established the bedrock of this Article’s thesis. First, it demon-

strated how video recording advances free speech values in a mannerconsistent with First Amendment theory because it both promotes demo-cratic self-governance and facilitates the search for broader moral andethical truths. Second, it showed that the act of video recording is a formof expression or in the alternative, is a form of conduct preparatory tospeech that is so strongly connected to pure speech that it is covered bythe First Amendment. Third, it illustrated how the communicativeelements of video image capture are no less powerful when the record-ing is made on private, as opposed to public, property.

Critics of this Article’s approach might suggest that, although videorecording can often be used to advance the free speech interests dis-cussed in this Part, it is conduct that more often has no political, social,or other expressive component. Accordingly, one might argue that theFirst Amendment is a poor fit for examining the limits on state power tocontrol such conduct. Perhaps, then, such restrictions should simply beconstrained by the Due Process Clause’s liberty-protecting provisions,which offer much more deference to government power to regulate vid-eo image capture. This Article fully acknowledges, indeed emphasizes,that the constitutional dilemma associated with regulation of video re-cording presents unprecedented and distinct issues from other types ofregulations targeting more conventionally accepted forms of communi-cation. Nonetheless, it argues that First Amendment coverage is criticalto constraining government power in this field. Because regulations ofvideo recording can so strongly and closely affect pure political and so-cial expression and advocacy, unfettered state power to regulate this con-


duct would endanger discourse and permit the state to impose its ownorthodoxy on public deliberation by controlling access to information.164

Again, this is not to say that the government can never regulate suchrecording when it takes place on private property, but this Article is con-cerned at this stage only with coverage. As discussed below, certain tangi-ble property interests, reputational interests, or privacy concerns mightjustify government recording prohibitions in certain instances, but re-cordings on private property cannot be construed as completely devoidof speech qualities and categorically inoculated from First Amendmentscrutiny.

II. FROM COVERAGE TO RIGHT: THE CONTOURS OF A CONSTITUTIONALRIGHT TO VIDEO IMAGE CAPTURE

Part I developed the argument that government restrictions onvideo image capture implicate the First Amendment. As this Article hasexplained, there is a range of conduct antecedent to speech, includingtaking handwritten notes and making audiovisual recordings, that allowsone to memorialize her observations—either for her own use, thought,and contemplation or for exhibition to an audience—that all falls on aspectrum of expressive activity covered by the First Amendment. Certainconduct preparatory to speech—violating speeding laws to get to a politi-cal speech on time, for example—is too far along the spectrum to war-rant First Amendment protection. But audiovisual recording is the penand paper for twenty-first century Upton Sinclairs. Recording observa-tions, no less than (and maybe even more than) taking notes about ob-servations, preserves facts and information for engagement in political,social, or moral discourse and informing the public. Government banson recording interfere with one’s ability to create a record of otherwiselawful observations, and when such restrictions impede the creation of aself-authenticating communication, they must be carefully scrutinized.

But First Amendment coverage is not tantamount to protection. AsProfessor Frederick Schauer has noted, “when we say that certain acts, ora certain class of acts, are covered by a right, we are not necessarily sayingthat those acts will always be protected.”165 That is, activity such as obscen-ity is not even covered by the First Amendment, and because it simply doesnot “count” as speech, no further analysis is warranted.166 But an activitythat is covered, such as defamation of a public official, may or may not be

164. See Jed Rubenfeld, The First Amendment’s Purpose, 53 Stan. L. Rev. 767, 817–22(2001) (advancing notion that one principle purpose of First Amendment is to act assafeguard against government imposition of its own orthodoxy).

165. Frederick Schauer, Free Speech: A Philosophical Enquiry 90 (1982); see alsoSchauer, Boundaries of the First Amendment, supra note 23, at 1769–74 (discussing dis-tinction between “coverage and the protection of the First Amendment”).

166. See Miller v. California, 413 U.S. 15, 23 (1973) (holding obscenity is not coveredby First Amendment).


protected, depending on whether the government’s interests outweigh thespeaker’s rights.167 Accordingly, if this Article has established that videorecording is speech or conduct preparatory to speech, it must next makethe case that state regulation of private individuals engaging in such ac-tivity may violate the First Amendment—that there is sometimes a con-stitutional right to record.

This Part maintains that the First Amendment will often, but not al-ways, protect individuals from being criminally punished or civilly sanc-tioned for recording videos. But the protection of recording as speechactivity, particularly on private property, is not self-evident as a doctrinalmatter. This Part identifies the scope and key limits on the right to rec-ord and then articulates and responds to the main doctrinal challengesto recognizing a right to record on private property. Finally, this Articleaddresses potential government interests that might be invoked to justifyregulating the act of making video recordings. Throughout this Part, ex-amples of existing restrictions on video recordings are used to illustratehow the theory would apply to current controversies.

A. Defining the Scope and Limits of a Constitutional Right to Record

As a threshold matter, this Part argues that the right only attaches ifthe person making the recording has a legal right to be present at thelocation where the recording takes place. Moreover, this Article arguesthat the right to record is limited to just that—recording. It does not im-ply or contain within it a right to affirmatively speak or communicate. To-gether, these two threshold limitations serve to critically distinguish theright to record from a general right of access, and they clarify that a rightto record one’s surroundings does not include a right to disrupt or com-municate in every setting. Thus, this Article suggests that there is a spatialand a functional limit on the right to record, both of which are consid-ered and discussed below.

1. Preconditions of the Right to Record. — This Part begins with a discus-sion of criteria that are essential preconditions of a constitutional right tovideo record. First, the person claiming the right must have lawful accesswhere she is recording. Second, the right is limited to the act of record-ing and does not extend to actively speaking.

a. Lawful Access. — It is a canonical principle of First Amendmentdoctrine that there is no “right to use private property owned by othersfor speech.”168 Laws of general applicability that protect property inter-ests are not typically understood to implicate free-speech interests. Thus,one cannot claim, for example, to be immunized from trespass laws out

167. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270–71 (1964) (imposing limitations,but not complete ban, on libel claims brought by public officials).

168. Erwin Chemerinsky, Constitutional Law: Principles and Policies § 11.4.3 (4th ed.2011).


of an interest in gaining access to valuable recordings.169 Moreover, it isaccepted doctrine that the “First Amendment does not guarantee thepress a constitutional right of special access to information not availableto the public generally”170 and there is “no basis for the claim that theFirst Amendment compels others . . . to supply information.”171

An important caveat to any asserted right to record, then, is that theright is only applicable to persons who have lawful access to the placewhere the recording occurs. Although its holding ultimately rested onalternate grounds, the facts of the Sixth Circuit’s decision in S.H.A.R.K.v. Metro Parks Serving Summit County provide an important illustration ofthis principle.172 In S.H.A.R.K., the court addressed plaintiffs’ claims thatthe removal of cameras they had placed in a public park to detect andexpose mistreatment of wildlife, and the subsequent deletion of the re-cordings from those cameras, violated the First Amendment.173 Ultimate-ly, the court found Metro Parks’s prohibition on disturbing trees and itspolicy for handling found property each provided a basis justifying itsremoval of the plaintiffs’ cameras and thus, found no First Amendmentviolation.174 An alternative basis for the decision could have been for thecourt to recognize that the city’s actions did not violate the First Amendmentbecause the cameras were left at the park to record activities during hourswhen the park was closed and thus there was no public access to the im-ages captured by the recording devices.175 After all, as the court did em-phasize, there is no general right of access to private areas, and the courtnoted that when an area is closed off to the public by a governmental ac-tion, such action, unless driven by an improper, content-based motive,generally will not offend the First Amendment.176 To the extent there wasno right of access to the park to make the observations in question or for

169. See Zemel v. Rusk, 381 U.S. 1, 16 (1965) (holding First Amendment is not vio-lated even where “refusal to validate passports for Cuba renders less than wholly free theflow of information concerning that country”); id. at 3 (“Department of State eliminatedCuba from the area for which passports were not required, and declared all outstandingUnited States passports . . . to be invalid for travel to or in Cuba unless specifically en-dorsed for such travel under the authority of the Secretary of State.” (internal quotationmarks omitted)). If one could assert immunity from trespass law in order to engage in im-portant speech activities, then the laws of private property would mean very little. As theCourt explained in rejecting a right of access claim, “[t]here are few restrictions on actionwhich could not be clothed by ingenious argument in the garb of decreased data flow.” Id.at 16–17.

170. Branzburg v. Hayes, 408 U.S. 665, 684 (1972); see also D’Amario v. ProvidenceCivic Ctr. Auth., 639 F. Supp. 1538, 1542 (D.R.I. 1986), aff’d, 815 F.2d 692 (1st Cir. 1987)(quoting Branzburg, 408 U.S. at 684).

171. Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978).172. 499 F.3d 553 (6th Cir. 2007).173. Id. at 561.174. Id. at 562–63.175. Id. at 561.176. See id. at 560–61 (recognizing government’s right to block access to information

so long as it does not “selectively delimit the audience”).


any other reason, S.H.A.R.K. is best viewed as a case about access to areasclosed to the public and is correctly decided.177

On the other hand, if a person engaged in recording is lawfully pre-sent, video recording can be understood as little more than the techno-logical enhancement of her individual powers of observation. The rightto record is essentially a right to memorialize or enshrine one’s interac-tions or observations. Surely it would be unconstitutional for the govern-ment to punish someone who was in a place where she had a lawful rightto be present for observing something and committing it to memory orto handwritten descriptions in a notebook. The state could not requiresuch a person to take steps, perhaps through hypnosis or drugs, to forgetwhat she has seen or to require the destruction of her notes. This is noless true with acts of audiovisual recording. A recording provides a self-authenticating and easily reproduced memorialization of one’s encoun-ters or experiences.

As the right to record is conceived, as long as persons engaged in re-cording have a right to be in the place where they record, the state can-not categorically prohibit the conduct of recording.178 The access may bethe result of a variety of different legal statuses, including an employmentrelationship, another type of contractual agreement, or a guest or inviteerelationship. Access may even be the result of subterfuge, as long as theperson engaged in the recording has permission to be on the property.179

At least on this criterion, then, the right to record would extend to videorecording in a public park; at a parade; in a store, restaurant, or otherplace of public accommodation; at one’s place of employment; or evenin a private home where one is an invited guest. Many government regu-lations would affect recording that meets this threshold requirement, evenif there are other arguments for permitting such regulation. Ag-gag lawscategorically ban recording in the physical spaces where an employee is

177. Notably, had the park been open during the hours of recording, the case mighthave been decided differently. See, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)(“Gathering information about government officials in a form that can readily be dissemi-nated to others serves a cardinal First Amendment interest in protecting and promotingthe ‘free discussion of governmental affairs.’” (quoting Mills v. Alabama, 384 U.S. 214, 218(1966))).

178. See Marc Jonathan Blitz, The Right to Map (and Avoid Being Mapped): ReconceivingFirst Amendment Protection for Information-Gathering in the Age of Google Earth, 14Colum. Sci. & Tech. L. Rev. 115, 185 (2012) [hereinafter Blitz, The Right to Map](discussing public forum doctrine and broad right to not only receive but also acquireinformation).

179. See Chen & Marceau, supra note 17, at 1505 (explaining First Amendment pro-tections for lies used to facilitate access to business). That the access is obtained through alie or misrepresentation does not necessarily mean that all such persons could claim aright to record. As addressed below, other countervailing government interests may out-weigh the right to record in some circumstances.


not only entitled but required to be present.180 Bans on recording incourtrooms would also implicate this first threshold, assuming that theproceedings are otherwise open to members of the public.181 Likewise,the making of a consensual private sex tape would fall within this firstrequirement because the participants are lawfully present and aware ofthe recording—even if, for privacy reasons, the right might not attach tothe tape’s later dissemination. Regulations of recordings made fromprivately operated drones might, or might not, meet this requirement,depending on where the drone is flown.182

Thus, as a threshold matter, it cannot be overemphasized that theright to video record everything from the mundanity of life to atrocitiesin a slaughterhouse does not carry with it a corollary right of access. Thepower of a recording, no more than the importance of Upton Sinclair’snotepad, does not justify uninvited entry into an area of public or privateproperty.183 Thus, for example, the First Amendment right to record

180. See, e.g., supra notes 14–21 and accompanying text (describing origin of ag-gaglaws and their effect on access to private agricultural workplaces).

181. See, e.g., M.D. Ala. LR 83.4(a) (“The taking of photographs and operation of au-dio or video recording in the courtroom . . . during the progress or in connection withjudicial proceedings . . . is prohibited.”); E.D. Pa. L.R. Civ. P. 83.3(a) (“No Judicial pro-ceedings may be . . . filmed by still or motion-picture camera . . . .”).

182. See Blitz et al., Regulating Drones, supra note 5, at 121–25 (arguing act of record-ing using unmanned aircrafts in public navigable airspace should enjoy First Amendmentprotection). For a thoughtful examination of the constitutional implications of government-imposed limits on computer-generated digital mapping, such as those created by largesearch engine companies, see generally Blitz, The Right to Map, supra note 178 (discuss-ing First Amendment implications of digital mapping).

183. It also bears noting that some courts might seek to limit the right to record bynoting that the Supreme Court has concluded that there is no right to engage in FirstAmendment activities on private property, even when that private property is otherwiseopen to the public. For example, there is no constitutional right to use shopping malls ortheir respective parking lots for protests, leafletting, or other First Amendment activity.Hudgens v. NLRB, 424 U.S. 507, 520–21 (1976). Indeed, compelling a private party topermit certain speech might constitute a violation of the First Amendment’s prohibitionon compelled speech. Compare PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1980)(rejecting argument that California rule giving protestors right to use parking lot wascompelled speech that violated First Amendment), with Miami Herald Publ’g Co. v.Tornillo, 418 U.S. 241, 259 (1974) (finding state statute granting political candidates equalspace to respond to criticism by newspapers unconstitutional). In this vein, one is barredfrom speaking even where she otherwise has a right of access, thus implying that acts ofrecording could similarly be subject to government-imposed restrictions even where onehas the right to be present. Notably, however, these cases do not impede the recognition ofthe right to record (even on private land) because they are predicated on the right ofpersons to exclude unwelcome speakers and speech from their private property. As ex-plained below, the right to record, properly conceived, does not include any right tocommunicate in a particular forum. The right to record is just that—the right to takeactions to engage in audiovisual memorialization—and it does not include a right to con-temporaneously communicate a message in any particular location. As such, the cases per-mitting limits on speech, even when the public is permitted access, evince nothing morethan the reasonable desire to protect owners from having others express themselves inways the owner does not approve on the owner’s property.


would not attach to a person who breaks into a private residence or theOval Office to record a video, even if the content relates to a matter ofgreat public concern.

b. Limited to the Act of Recording. — The right to record is also limitedto recording information and images and does not extend protection tothe actual use of public or private property to engage in overt expression.Recording and speaking are both expressive activities, but as explainedbelow, the qualitative differences between these categories require dis-tinct doctrinal responses. There are fundamental differences between re-cording for later use and speaking at the present moment. When donewithout the property owner’s consent, audible expression can interferewith the use and enjoyment of the property. One who is recorded maynot appreciate it and may even have privacy interests strong enough toovercome the right to record in some instances, but insofar as recordingis a form of speech activity, it does not affirmatively impede the propertyowner’s solitude in the same manner as other speech acts do. Video re-cording does not disturb, annoy, or even bore the listener because thereis no listener at the moment of recording. Recording one’s surroundingsin a surreptitious manner should not affect the observed interaction atall.184

Again, many of the contexts in which the government regulates re-cording meet this limitation as well. There is a critical difference betweena member of the media taking a job at an assisted living center and se-cretly recording instances of poor sanitation or elder abuse and an in-stance of an activist gaining employment at an insurance company toprovide himself with a soapbox on which to lecture a captive audience onthe pros and cons of the Affordable Care Act. The latter would not be

184. Critics might analogize to the Heisenberg effect and argue that our claim thatrecording will have no effect is erroneous insofar as the mere act of being observed (orrecorded) will almost always affect one’s behavior. See Henry T.C. Hu, Too Complex toDepict? Innovation, “Pure Information,” and the SEC Disclosure Paradigm, 90 Tex. L. Rev.1601, 1685–86 (2012) (citing relevant physics literature regarding Heisenberg principleand noting “very act of observation of an atomic particle itself affects the state and proper-ties of that particle”); see also Julie E. Cohen, Privacy, Visibility, Transparency, and Exposure,75 U. Chi. L. Rev. 181, 192 (2008) (“Surveillance infrastructures alter the experience ofplaces in ways that do not depend entirely on whether anyone is actually watching.”).There are two responses to this line of critique. First, if people do not know they are beingrecorded, then the risk of altered behavior is minimal. Second, if people fear that they arebeing recorded (or might be recorded), then they actually might be deterred fromwrongful conduct. That is to say, the threat of recording might cause people to alter theirbehavior toward that which is more socially desirable. The idea that people behave betterwhen they are recorded is exactly the sort of thinking that undergirds efforts to spur videorecording of police interactions with citizens. Cf. Michael Potere, Comment, Who WillWatch the Watchmen?: Citizens Recording Police Conduct, 106 Nw. U. L. Rev. 273, 314–15(2012) (contesting idea that videotaping police institutionalizes distrust). While there is apotential concern that the alteration in behavior could, in some circumstances, cause thesubject of the recording to be “overdeterred” and to behave in ways that exceed what issocially optimal, on balance the advantages of accountability outweigh such a risk.


encompassed by the right to record, which does not include a right tospeak in a disruptive manner in one’s workplace. Similarly, the act of re-cording from a drone is qualitatively different from broadcasting a loudmessage from an electronic amplifier while flying over private property.And recording a public courtroom proceeding is distinct from standingup and disruptively shouting in the middle of a trial.

2. Recording in Public and Private Settings. — Even if these two thresh-old prerequisites to the right to record are universally accepted, therewill still be doctrinal resistance to recognizing recording as a form of pro-tected First Amendment activity. This is particularly true with regard torecording on private property. Because the stakes of the right to recordmay be different depending on the location of the recording, the rightmay be articulated in two broad categories. First, this section addressesthe right to record in public places or in private places where the personengaged in recording has the consent of the property owner. Second,this section defines the right to record on private property without theowner’s consent.

a. Recording in Public or on Private Property with Consent. — This Articlemaintains that the First Amendment protects individuals from govern-ment regulation of audiovisual recordings made in publicly accessiblespaces, subject to reasonable, content-neutral time, place, or manner re-strictions. Such recordings can increase knowledge and advance publicdiscussions of race, police reform, and other issues of social, political,and moral significance. This conception of the right to record is sup-ported by the decisions of courts that have recognized that the state maynot restrict people from recording the public activities of law enforce-ment officers.185 Similarly, government restrictions on recording politicaldemonstrations or parades or the everyday plight of a city’s homelesspopulation would infringe the right to record. But so would a prohibi-tion on video recording everyday activities on the street or in a publicpark, even if they were not directly connected to a political or artisticobjective.

The right to record would also extend to protect recordings madeon one’s own private property and to recordings made on another’s prop-erty with that person’s consent and knowledge. Thus, recording oneself,or one’s family or pets, is speech subject to constitutional protection fromgovernment constraints. This might include everything from recordingsof commonplace activity such as home movies to self-recorded instruc-tional videos to be posted on YouTube to private sex tapes.186 If another

185. See Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (finding right to film govern-ment officials is “well-established liberty” protected by First Amendment); Crawford v.Geiger, 996 F. Supp. 2d 603, 617 (N.D. Ohio 2014) (outlining general consensus thatvideotaping police activity is protected by First Amendment).

186. Again, restrictions on the subsequent, nonconsensual circulation of private sextapes for viewing by third parties, however, might implicate compelling government inter-ests in protecting individual privacy, which would likely fall outside of the scope of the right


person invites the recorder into his home and consents to the recording,the act of making those recordings would be constitutionally protected aswell.

The right to record in public or in private with consent should be af-forded First Amendment protection for at least two important reasons.First, outside a few narrow circumstances, there will seldom be any legiti-mate reason for the state to ban recording in these settings. To the extentthe government wishes to ban public recordings, its reasons are likely,though not always, related to prohibiting exposure of matters that itwould like to hide from public scrutiny and not to advance any legitimatepolice power concern. Moreover, it is difficult to imagine many circum-stances in which the state might have a legitimate, much less compelling,reason to ban private, consensual video recordings. This is not to suggestthat all such recording will be protected. One area in which this has beenhighly controversial is when parents have been criminally charged fortaking private photographs or video recordings of their minor childrenin the nude.187

Second, to the extent property or privacy concerns might animategovernment restrictions on video recordings, such interests are much lesslikely to be implicated by public and consensual private recordings thanby nonconsensual recordings on private property. As catalogued above,implicit in many of the right to record cases is the notion that individualswho are in public typically have reduced expectations of privacy. For ex-ample, throughout the Seventh Circuit’s opinion in ACLU v. Alvarez, thecourt implies that the absence of “any expectation of privacy” on the partof the recorded party was relevant to the finding that the recording wasin fact speech.188 The fact that the recording was not disruptive and was

to record. See Citron & Franks, supra note 10, at 37 (explaining privacy concerns overrideany First Amendment value in confidential, sexually explicit images).

187. See, e.g., Amy Adler, The Perverse Law of Child Pornography, 101 Colum. L. Rev.209, 234–44 (2001) (outlining evolution of child pornography law including historical de-velopment of pornography law, Supreme Court decisions related to child pornographylaws, and rationales for those decisions).

188. 679 F.3d 583, 595 n.4 (7th Cir. 2012). The court elaborated later in the opinion:[S]urreptitiously accessing the private communications of another byway of trespass or nontrespassory wiretapping or use of an electronic lis-tening device clearly implicates recognized privacy expectations . . . [but]these privacy interests are not at issue here. The ACLU wants to openlyaudio record police officers performing their duties in public places andspeaking at a volume audible to bystanders. Communications of this sortlack any “reasonable expectation of privacy” for purposes of the FourthAmendment . . . . [B]y making it a crime to audio record anyconversation, even those that are not in fact private—the State has sev-ered the link between the eavesdropping statute’s means and its end.Rather than attempting to tailor the statutory prohibition to the im-portant goal of protecting personal privacy, Illinois has banned nearly allaudio recording without consent of the parties—including audio record-ing that implicates no privacy interests at all.


“carried out by people who have a legal right to be in a particular publiclocation and to watch and listen to what is going on around them,” seemsinextricably linked with the court’s reasoning.189 Furthermore, consen-sual private recordings are unlikely to ever implicate property or privacyconcerns because there is, by definition, consent of the property ownerand the subject or subjects being recorded.

b. Recording on Private Property Without Consent. — As discussed ear-lier, video image capture on private property, even without consent, is nodifferent from video recording in public in terms of its qualities as speechas understood under First Amendment theory. Thus, a constitutional rightto free speech should also extend to nonconsensual recordings on pri-vate property. This section addresses the skepticism about this view underexisting case law and also suggests some important limitations on the rightto nonconsensual video recordings on private property that will amelio-rate concerns that the government might have in regulating them. First,with respect to nonconsensual recordings on private property, the rightto record should be limited to recordings about matters of public con-cern. Second, these types of recordings, while protected, must still be ex-amined in light of the appropriate First Amendment doctrinal test, de-pending on how the regulation operates. Thus, the conclusion of thisPart suggests that the right to record on private property without consentis subject to limitations if the recording directly interferes with tangibleproperty rights or infringes upon a reasonable expectation of personalprivacy.

i. Commentary and Case Law. — To date, the limited scholarly and ju-dicial treatment of video recording or photography under the First Amendmenthas typically assumed that any constitutional protections for recordingare limited to acts of public recording. For example, despite all of hisgroundbreaking clarity about the role of recording in political debate,Professor Kreimer is decidedly circumspect when talking about the pro-spect of a right to record in private. Indeed, he concedes that “[m]attersbecome more complicated” when the recording is made in a nonpublicvenue.190 Professor Kreimer recognizes that the newsworthiness of a pri-vate recording (and concomitant lack of intimacy or offensiveness) mayjustify First Amendment protection,191 but this is a subtle point that is rel-egated to a cursory discussion.192 On the whole, his project is devoted toarticulating a clear vision for a right to record in public. Professor Kreimereven acknowledges the argument that when one engages in activities on

Id. at 605–06.189. Id. at 606.190. Kreimer, supra note 24, at 403.191. Id. at 404 (“The interest in assuring that our private words and images are not

conveyed against our will to a public audience is constitutionally cognizable.”).192. Id. at 404–05.


private property the recorder may have “waived [her] First Amendmentrights to capture images.”193

Lower courts considering assertions of a right to record are evenmore guarded. Private recordings are assumed to enjoy either less or per-haps no First Amendment protection because a person recorded in pri-vate has “done nothing to reveal herself to the public gaze and the cap-ture and dissemination of her image singles her out for an impingementof her privacy and dignity.”194 An older state court of appeals case ad-dressing various privacy torts elaborates on this view. In reviewing thescope of privacy, the court explains:

It seems to be generally agreed that anything visible in a publicplace can be recorded and given circulation by means of a pho-tograph, to the same extent as by a written description, sincethis amounts to nothing more than giving publicity to what is al-ready public and what anyone present would be free to see.195

This encapsulates the conventional wisdom about the right to record: Thatwhich is available to the public can be recorded, but that which is notmust be protected under notions of privacy and dignity.

More recently, a Seventh Circuit decision illustrates that the increas-ing prevalence of recording technologies has not entirely eroded the en-trenched private–public dichotomy.196 In ACLU v. Alvarez, the court con-sidered a First Amendment challenge to a law that required consent inorder to record another person.197 The court struck down the statute onthe basis that there is a constitutional “right to record.”198 However, thecourt emphasized that the recordings plaintiff sought to produce were ofofficials “performing their duties in traditional public fora.”199 Its reason-ing stresses that the recordings in question were not “of a private com-munication” and instead were of actions and utterances “occur[ing] inpublic.”200 The court stops short of holding that recording is only speechwhen it occurs in public, but Alvarez only addresses public recording.

Other federal decisions have also implicitly suggested a distinctionbetween private and public recording. For example, it is commonplacefor courts to recognize a right to record “on public property”201 or to rec-

193. Id. at 403 (citing Andrew J. McClurg, Kiss and Tell: Protecting IntimateRelationship Privacy Through Implied Contracts of Confidentiality, 74 U. Cin. L. Rev. 887,916–17 (2006); Neil M. Richards and Daniel J. Solove, Privacy’s Other Path: Recoveringthe Law of Confidentiality, 96 Geo. L.J. 123, 177–80 (2007)).

194. Id. To be sure, Professor Kreimer goes on to recognize that not all limits on pri-vate recording are constitutionally tolerable.

195. Hollander v. Lubow, 351 A.2d 421, 426 (Md. 1976).196. ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012).197. Id. at 586.198. Id. at 595.199. Id. at 594.200. Id. at 595.201. Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).


ord “public meetings.”202 Other cases recognize a more capacious “FirstAmendment right to film matters of public interest,” but even these casestend to arise in the context of litigation over recordings made in pub-lic.203 As Professor Bambauer has explained, in the limited cases that haveconfronted the question of a right to record, “with one exception, the rightwas crafted narrowly, as a right to record public officials performing theirpublic duties.”204 Quite simply, there is a dearth of case law addressing theright to record generally and even fewer decided cases on the issue ofprivate recordings on matters of public interest. The assumption of mostcourts addressing public recording, though certainly not all,205 seems tobe that speech rights corresponding to acts of recording are strongest inpublic.

Perhaps no case stands more clearly for the proposition that record-ings made outside of the public sphere may offend notions of privacythan the arguably outdated Ninth Circuit decision in Dietemann v. Time,Inc.206 A.A. Dietemann was practicing some form of “healing” out of ahome office when a reporter from Life magazine pretended to be aninterested patient in order to obtain audio and image recordings for astory called “Crackdown on Quackery.”207 Dietemann alleged that his pri-vacy was violated, and the Ninth Circuit agreed, holding that the “FirstAmendment has never been construed to accord newsmen immunity fromtorts or crimes committed during the course of newsgathering.”208

The Dietemann rule, if read broadly, is largely incompatible with aright to record outside of purely public realms. If states can criminalizeor impose civil penalties for all variety of nonpublic recordings, then re-cording is protected speech exclusively in public domains or private do-mains with consent. But Dietemann does not portend such a First Amendmentrule, and in fact, a close reading of the case leads to the conclusion thatit is dated to the point of near irrelevance. The court faults the mediadefendant for intruding on reasonable expectations of privacy, but thatconcept, substantially limited in the Fourth Amendment context, was lessmeaningfully developed when Dietemann was decided.209 In other words,

202. Iacobucci v. Boulter, No. Civ. A. 94-10531-PBS, 1997 WL 258494, at *6 (D. Mass.Mar. 26, 1997); see also Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (holdingplaintiffs’ free speech rights were violated when they were prohibited from recording pub-lic meeting).

203. Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).204. Bambauer, supra note 28, at 84; see also id. at 84 n.117 (compiling cases on this

point).205. See Animal Legal Def. Fund v. Otter, 44 F. Supp. 3d 1009, 1023 (D. Idaho 2014)

(holding ban on unauthorized recording while on private property was subject to FirstAmendment scrutiny).

206. 449 F.2d 245 (9th Cir. 1971).207. Id. at 245–46.208. Id. at 249.209. Compare id. (explaining while invitee assumes risk “visitor may repeat all he

hears and observes when he leaves[,] . . . [he] should not be required to take the risk that


Dietemann is a case about privacy in an era when expectations of privacywere understood to be more capacious.210 Moreover, other circuits havereadily distinguished or rejected Dietemann,211 and even the Ninth Circuithas distanced itself from the decision.212 Most importantly, many courtshave emphasized that the reasoning of Dietemann is limited to an intru-sion into one’s private home, where he happened to also engage in hishealing practices and not a commercial office or workplace.213

In short, while there is very limited judicial consideration of the is-sue to date, some courts seem to take for granted that recording consti-tutes an act of expression protected by the First Amendment only if itoccurs in public. But such a position warrants significantly more atten-tion. There is no other action that is categorized as speech (or not) de-pending on where it occurs. One would assume that recording either isor is not a speech activity and the location of the activity would simplydictate whether a limit on such speech satisfies the requisite scrutiny.However, because there seems to be an underlying assumption that re-cording loses its status as speech if it is done in private, this Article willarticulate and analyze the most compelling arguments for bifurcating thespeech value of recording along private and public lines.

what is heard and seen will be transmitted by photograph or recording . . . .”), with UnitedStates v. Davis, 326 F.3d 361, 366 (2d Cir. 2008) (holding video recordings made by invitedguest did not violate Fourth Amendment where “hidden camera did not capture any areasin which Davis retained a privacy interest . . . .”).

210. For example, citizens do not hold a reasonable expectation of privacy in thephone numbers they dial, Smith v. Maryland, 442 U.S. 735, 742 (1979), or in their bankrecords, United States v. Miller, 425 U.S. 435, 443 (1976), because they take the risk theirinformation, when revealed to another individual, “will be conveyed by that person to thegovernment.” Id. In some circumstances, individuals also have a lower expectation ofprivacy in shared premises. See Fernandez v. California, 134 S. Ct. 1126, 1134 (2014)(holding warrantless search was valid where third party consented after defendant’s lawfularrest); Illinois v. Rodriguez, 497 U.S. 177, 188–89 (1990) (explaining warrantless searchdoes not violate Fourth Amendment when police obtain consent from person whom theyreasonably believe to have authority to grant consent).

211. See, e.g., Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1352–53 (7th Cir. 1995)(distinguishing public ophthalmic clinic from private “quackery” at issue in Dietemann).

212. See, e.g., Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 306 F.3d 806, 818 n.6(9th Cir. 2002) (distinguishing private nature present in Dietemann from workplace inter-action). Professor Bambauer has also provided a stinging critique of Dietemann’s reasoning:

A right to access information (or, more precisely, a right to be free fromgovernment restraint on access to information) is at odds with Dietemannand other cases that presume the First Amendment imposes absolutelyno constraint on the tort of intrusion upon seclusion. But [such an] ap-proach seems necessary. If access to knowledge were not a constitution-ally protected right, the intrusion tort could be boundless. At the ex-treme, the government could prohibit a person from recording anythingat all without conflicting with the First Amendment. This cannot beright.

Bambauer, supra note 28, at 85.213. See, e.g., Med. Lab. Mgmt. Consultants, 306 F.3d at 818 n.6 (limiting Dietemann in

this respect); Desnick, 44 F.3d at 1352–53 (same).


ii. A Public Concern Limitation on the Right to Nonconsensual Recordingon Private Property. — Under our conception, the right to engage in non-consensual video recordings on private property (but not on public prop-erty or on private property with consent) would be limited to protectingrecordings that pertain to a matter of public concern or at least have astrong connection to public discourse. That is, the recordings must some-how relate to a general matter of political, social, or moral significancethat is an appropriate subject of public debate. Another relevant consid-eration ought to be whether the person engaged in recording is moti-vated by a political, journalistic, or investigative purpose, which wouldreceive greater First Amendment protection, or a purely commercial pur-pose or purely private/personal reason, which would be less protected.214

This distinction parallels existing theoretical and doctrinal distinctionsbetween core political expression and commercial speech.

This focus on recordings relating to matters of public concern tiesthe right to make audiovisual recordings directly to the underlying pur-poses of the First Amendment, which include the promotion of demo-cratic self-governance and the search for truth. By critically informingpublic discourse, recordings can be a powerful facilitator of both of theseinterests. Like public recordings, video recordings on private propertymay substantially inform public discourse. Again, many of the illustra-tions of important recordings already discussed involve recordings onprivate property, such as at private political fundraisers or on the prem-ises of private agricultural operations. Use of electronic drones to engagein surveillance of industrial polluters is another example of recordingsthat have public significance.

As the Supreme Court has repeatedly declared, “[S]peech on ‘mat-ters of public concern’ . . . is ‘at the heart of the First Amendment’s pro-tection.’”215 That is because “‘speech concerning public affairs is morethan self-expression; it is the essence of self-government.’”216 Accordingly,“‘speech on public issues occupies the highest rung of the hierarchy ofFirst Amendment values, and is entitled to special protection.’”217 What-ever one might think about a right to record on private property, if theFirst Amendment covers such activity, the Court has been clear that inso-far as the recording relates to matters of public concern, the highestrung of First Amendment protection applies.

214. Motive is not a controlling feature of the public concern inquiry, but it oftenplays a nontrivial role in the manner in which the Supreme Court decides whether some-thing is speech. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1227 (2011) (Alito, J., dissenting)(faulting majority for deciding funeral protests were entitled to First Amendment protec-tion because speech “was not motivated by a private grudge”).

215. Id. at 1215 (majority opinion) (alteration in original) (quoting Dun & Bradstreet,Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–59 (1985) (plurality opinion)).

216. Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964)).217. Id. (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)).


In addition, it is worth pointing out that to a certain extent, the re-cording of another person or another person’s property will always pitsome assertions of privacy (well-founded or not) against the speech rightsattached to recording. In this regard, any such privacy concerns aremuch less likely to be deemed a significant—let alone a compelling—interest when the matters sought to be revealed are matters of publicconcern.218 This is not to suggest that all restrictions on recordings ofnonpublic concern should be upheld. Certainly a ban on making videosof one’s own cat from within the privacy of the home, while perhaps serv-ing a significant government interest in avoiding workplace distractionsbroadcast over YouTube,219 would not be permissible. On the other hand,the recording of another’s cat without permission while on someoneelse’s private property would be entitled to less protection than otherrecording bans or limitations because the recording is not about a matterof public concern. On balance, the fact that a recording is related to amatter of public concern cuts in favor of the recorder and against limitson such recording.

Limiting the right to make nonconsensual recordings on privateproperty to matters of public concern further helps sort out some of thegovernment regulations of recording that are the subject of current con-troversy. Ag-gag laws, which categorically prohibit all recordings on thepremises of agricultural operations, would be unconstitutional to the ex-tent that the recordings were of activities that would implicate the legalregulation of factory farms and the ethical choices our society makesabout the treatment of nonhuman animals.220 However, a narrowly tai-lored ban on videotaping a business’s operations to appropriate tradesecrets would not implicate the right to record because that is a matter ofprivate concern. Bans on drone recordings to reveal the conduct of in-

218. To be sure, public concern is not self-defining, but we are comfortably saying allnonprivate, nonintimate details are generally public. As the Court has explained,

Speech deals with matters of public concern when it can “be fairly con-sidered as relating to any matter of political, social, or other concern tothe community,” or when it “is a subject of legitimate news interest; thatis, a subject of general interest and of value and concern to the public.”The arguably “inappropriate or controversial character of a statement isirrelevant to the question whether it deals with a matter of public concern.”

Id. at 1216 (citations omitted) (quoting San Diego v. Roe, 543 U.S. 77, 83–84 (2004);Rankin v. McPherson, 483 U.S. 378, 387 (1987); Connick, 461 U.S. at 146).

219. See, e.g., Hadley Freeman, Opinion, So This Is How the World Ends: With UsDistracted by Cute Cats, Guardian (Mar. 4, 2015), http://www.theguardian.com/commentisfree/2015/mar/04/cute-cats-internet [http://perma.cc/Y2VZ-RK92] (arguing cat memesare distracting from world news). But cf. Lucia Peters, Pew Survey Reveals the InternetDoesn’t Distract Us from Our Jobs, No Matter How Many Cat Videos We Watch, Bustle(Dec. 31, 2014), http://www.bustle.com/articles/56315-pew-survey-reveals-the-internet-doesnt-distract-us-from-our-jobs-no-matter-how-many-cat [http://perma.cc/L5F3-JMZW] (re-porting results showing cats on Internet are not distracting).

220. Animal Legal Def. Fund v. Otter, 118 F. Supp. 3d 1195, 1208 (D. Idaho 2015)(holding ag-gag statute did not have rational purpose).


dustrial polluters would be at risk for invalidation but not bans on theuse of drones to record nude sunbathers.

Critics of this approach might raise at least two legitimate objectionsto the public-concern requirement. First, it may import administrabilityproblems into this area of First Amendment doctrine. Disputes about thedefinitions of public concern have plagued First Amendment employeespeech doctrine,221 and the same thing might occur here. Indeed, as theCourt has candidly acknowledged, “the boundaries of the public concerntest are not well defined.”222

Nonetheless, the Court has, of course, elaborated on the standard atsome length. Speech deals with matters of public concern when it can

‘be fairly considered as relating to any matter of political, social,or other concern to the community,’ or when it “is a subject oflegitimate news interest; that is, a subject of general interest andof value and concern to the public.” The arguably “inappropri-ate or controversial character of a statement is irrelevant to thequestion whether it deals with a matter of public concern.”223

A second critique of tying the protection of recording in private tothe question of public concern also relates to the lack of a clear dividingline between recordings about matters of public concern and recordingsthat do not relate to public discourse. Because there is ambiguity as toexactly what constitutes a matter of public concern, such a standardcould have a chilling effect. Persons engaged in video activism224 mightconsider making a recording that would be valuable, but its public signifi-cance may be unclear or ambiguous, or perhaps not yet apparent. Whilethere will be some level of uncertainty in the application of this standard,it need not be fatal. Other areas of First Amendment doctrine have pro-vided robust protection for speech even where the boundaries of theright are not crystal clear. Moreover, the public concern requirementpermits the law to draw important distinctions between different contextsof private recordings and balance critical interests of speech and privacy.On balance, this Article proposes that the value in permitting these dis-tinctions to be drawn outweighs the uncertainty that might accompany apublic concern limitation.

221. See, e.g., Stephen Allred, From Connick to Confusion: The Struggle to DefineSpeech on Matters of Public Concern, 64 Ind. L.J. 43, 75 (1988) (explaining inconsistencyin lower federal courts arising from their discretion in determining scope of public em-ployees’ free-speech rights); Michael L. Wells, Section 1983, The First Amendment, andPublic Employee Speech: Shaping the Right to Fit the Remedy (and Vice Versa), 35 Ga. L.Rev. 939, 960–61 (2001) (same).

222. San Diego, 543 U.S. at 83.223. Snyder, 131 S. Ct. at 1211 (citations omitted) (quoting San Diego, 543 U.S. at 83–

84; Rankin, 483 U.S. at 387; Connick, 461 U.S. at 146).224. See generally Thomas Harding, The Video Activist Handbook 1 (2d ed. 2001)

(surveying emergence of video activism, which “uses video as a tactical tool to bring aboutsocial justice and environmental protection”).


B. Addressing Potential Barriers to a Right to Record in Private Under Exist-ing First Amendment Doctrine

This section identifies three possible areas of First Amendment juris-prudence that would seem to either directly or by implication conflictwith the recognition of a constitutional right to record on private prop-erty: the newsgatherers’ privilege cases, the captive audience cases, andthe public forum cases. These doctrines have not been specifically in-voked by any of the courts or commentators to date. Instead, this sectionidentifies and responds to these arguments preemptively. While each ofthese doctrines appears at first glance to impose limits on the right torecord on private property, they are, on closer examination, inapposite.

1. No Newsgatherers’ Privilege. — One objection to the argument thatvideo recording is protected expression under the First Amendmentmight be that the Supreme Court has heretofore failed to embrace theidea of a constitutional newsgatherers’ privilege. In Branzburg v. Hayes,the Court rejected the First Amendment claim of newspaper reporterswho refused to appear before grand juries to testify about informationthey had acquired from confidential informants.225 The reporters claimedthat they should have some protection from having to testify because re-vealing confidential sources and information would impair their ability togather information for news stories.226 The Court found that no citizenhas immunity from a grand jury investigation and that there is no specialright for journalists to have a special exemption because of their associa-tion with the press.227 More generally, the Court has elsewhere noted thatthe enforcement of general laws does not “offend the First Amendmentsimply because their enforcement against the press has incidental effectson its ability to gather and report the news.”228

Although the Court rejected the claim for a newsgatherers’ privilegefrom grand jury subpoenas, it was clear that that conclusion did notmean that “news gathering does not qualify for First Amendment protec-tion; without some protection for seeking out the news, freedom of thepress could be eviscerated.”229 Thus, the absence of a narrowly definednewsgatherers’ privilege does not necessarily lead to the conclusion thatthere is no broader right to record. Indeed, this Article does not advo-cate for any sort of journalistic exceptionalism for recording, and in anyevent, the right to record should not be limited to professional newsgath-erers. Some of the most important video recordings that have informedpublic debate have been by political activists, amateur hobbyists, and un-

225. 408 U.S. 665, 708 (1972).226. Id. at 679–80.227. Id. at 682–83.228. Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991).229. Branzburg, 408 U.S. at 681.


dercover government investigators.230 Moreover, with the expansion ofInternet avenues for conveying information, the line between profession-al journalists and citizen activists is becoming less clear, making a rightcontingent on one’s professional credentials both difficult to administerand to justify.231 In any event, a right to record in private without consentdoes not threaten the longstanding view that there is no general news-gatherers’ privilege.

2. Protection of Captive Audiences. — A distinct line of First Amendmentcases permits the state to limit speech in private spaces, and even somepublic spaces, to the extent that the speech interferes with individual lib-erty by forcing people to be “captive” audiences.232 The captive audiencecases recognize a right to be free from uninvited speech activities in thezone of privacy of one’s own property.233 For example, the Court has up-held a law allowing persons to prevent the delivery of salacious mailingsto their homes234 and an ordinance prohibiting picketing “before orabout” any particular individual’s residence.235 The Court emphasizedthat although “communication is imperative to a healthy social or-der[,] . . . the right of every person ‘to be let alone’ must be placed in thescales with the right of others to communicate.”236 On this basis, theCourt has even upheld laws limiting door-to-door commercial sales237 andin Rowan v. U.S. Post Office Department explained:

230. See generally Adam Cohen, The Media that Needs Citizens: The First Amendmentand the Fifth Estate, 85 S. Cal. L. Rev. 1, 7–23 (2011) (discussing ways in which amateurvideographers have contributed to public debate).

231. See Bhagwat, Producing Speech, supra note 28, at 1053 (arguing First Amendmentshould protect more than just “institutional press” in age where broader public regularlyengages in information gathering).

232. See, e.g., Hill v. Colorado, 530 U.S. 703, 735 (2000) (upholding Colorado statuteprohibiting any person from approaching within eight feet of another person near healthcare facilities based, in part, on state’s desire to protect listeners from unwanted communi-cation); Frisby v. Schultz, 487 U.S. 474, 488 (1988) (upholding ordinance banning picket-ing in front of targeted residences based on government’s interest in protecting residentialprivacy). For a critique of the Court’s extension of the captive audience doctrine to publicsidewalks in Hill, see Chen, Statutory Speech Bubbles, supra note 123, at 60–61.

233. The phrase “unwilling listener” is closely associated with the “captive audience”doctrine. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1220 (2011) (“As a general matter, wehave applied the captive audience doctrine only sparingly to protect unwilling listeners fromprotected speech.”).

234. Rowan v. U.S. Post Office Dep’t, 397 U.S. 728, 729, 736–38 (1970) (consideringchallenge to portion of “Postal Revenue and Federal Salary Act . . . under which a personmay require that a mailer remove his name from its mailing lists and stop all future mail-ings to the householder” (citation omitted)).

235. Frisby, 487 U.S. at 476–78, 488.236. Rowan, 397 U.S. at 736.237. Breard v. City of Alexandria, 341 U.S. 622, 645 (1951) (“It would be . . . a misuse

of the great guarantees of free speech and free press to use those guarantees to force acommunity to admit the solicitors of publications to the home premises of its residents.”).But see Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 622, 638–39 (1980)(invalidating “ordinance prohibiting the solicitation of contributions by charitable organi-


The Court has traditionally respected the right of a house-holder to bar, by order or notice, solicitors, hawkers, and ped-dlers from his property . . . . To hold less would tend to license aform of trespass and would make hardly more sense than to saythat a radio or television viewer may not twist the dial to cut offan offensive or boring communication and thus bar its enteringhis home.238

In short, the unwilling-listener line of cases bespeaks a foundationalprinciple: “Even protected speech is not equally permissible in all placesand at all times.”239 Focusing on “the ‘place’ of . . . speech” is a staple ofFirst Amendment analysis.240 This protection of “unwilling listeners”might suggest another barrier to recognizing a right to record on privateproperty.

Upon reflection, however, the captive audience cases do not haveany application in the recording context because while recording on pri-vate property is part of the spectrum of expressive activity, it is not imme-diately communicative to those present during the recording.241 As ex-plained in the context of distinguishing the right of access cases, record-ing is not tantamount to protesting, chanting, soliciting, leafletting, orotherwise communicating on private property.242 The captive audiencedoctrine is designed to protect individuals from having their privatespace intruded upon with unwelcome messages or disturbing communi-cations. It is not a generic and invariable right to privacy against thoseyou have invited to be present on your property. For example, if a Walmartemployee secretly records a conversation with her boss that documentsdemeaning or inappropriate behavior, it may be embarrassing for thesupervisor or the company, but it is not forcing the supervisor to be anunwilling audience to speech,243 nor is it impeding or coercing her pri-vate behavior. The concerns in the captive audience cases are that oneparty is forced to suffer speech she finds offensive, disagreeable, incor-

zations that do not use at least 75 percent of their receipts for ‘charitable purposes’” andnoting no “substantial relationship between the 75-percent requirement and the protec-tion . . . of residential privacy”).

238. 397 U.S. at 737.239. Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 799 (1985).240. Frisby, 487 U.S. at 479; see also id. at 485 (“[W]e have repeatedly held that indi-

viduals are not required to welcome unwanted speech into their own homes . . . .”).241. A recording that is livestreamed is arguably speech but for an audience different

than those who are the subject of the recording.242. See supra section II.A.1.a (discussing First Amendment cases dealing with right to

access property).243. In Snyder v. Phelps, the Court emphasized that observing replays of speech on

news or other media sites does not itself raise captive audience concerns. 131 S. Ct. 1207,1220 (2011) (declining to apply captive audience doctrine where party did not learn con-tent of offensive speech until viewing news broadcasts later).


rect, or simply boring while she is in a private space such as the home.244

But recording does not interfere with owners’ use of property or requirethem to listen to any speech, so the unwelcome expression interest doesnot attach in this circumstance. The captive audience doctrine does notapply to recordings because the private property owner is not the in-tended audience. The difference is material.

Because recording is not actively communicating to the persons pre-sent, the concerns of interruption and captive audience are generallynonexistent. There will be circumstances when recording (or even therisk of being recorded) could interrupt proceedings, such as in a court-room, as discussed below.245 There may also be times when a recording ofintimate, private details from one’s home or a restroom invades privacyconcerns so fundamental as to exceed First Amendment protection.246 Sothere will be recording that is unprotected, perhaps in both the privateand the public spheres. But the core rationales behind doctrines thatprotect nonpublic and private forums from unwelcome speech—the cap-tive audience doctrine—cannot be reasonably extended to noninterrup-tive audiovisual recording of nonintimate acts.

Moreover, if the concern with recording is expressed not as to theharms of recording at the moment—disturbances or interruptions—butwith preventing the subsequent dissemination of the recording, then se-rious prior restraint concerns arise, at least with respect to matters ofpublic concern. Justifying a prohibition on recording in private in orderto prevent subsequent distribution and concomitant reputational or pri-vacy harms “runs afoul of First Amendment doctrine’s established hostil-ity toward suppressing expression in order to interdict future harms.”247

If the goal is not to prevent interruption or unwilling listeners but toavoid downstream speech in public forums, then the First Amendment isuniquely implicated.

3. Analogies to Public Forum Doctrine. — A third doctrinal area that ispossibly inhospitable to the right to record in private, at least by anal-

244. See, e.g., Frisby, 487 U.S. at 484–85 (explaining all citizens have heightened pri-vacy interests at home and government may protect citizens from unwanted speech intheir homes).

245. See infra section II.C.3 (discussing rationale behind prohibiting video recordingof courtroom proceedings).

246. Kreimer, supra note 24, at 395 (“These justifications often suffice to justify banson peeping Toms with cameras or surreptitious image capture of intimate conduct.”).

247. Id. at 404. Another way of making this same point is to recognize that forum-based restrictions are often designed to preserve the proper functioning of public spacesand to avoid harming the dignity, peace, and cleanliness of the public space. See, e.g.,Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 817 (1984) (explainingrestriction on posting to signposts was permissible to avoid clutter and aesthetic injury). Bycontrast, recording will generally not interfere or hinder the forum’s activities at all. In-stead, limits on recording function only to prevent subsequent dissemination.


ogy,248 is the Court’s public forum doctrine.249 This area of First Amendmentlaw gives wide latitude to the state to regulate the time, place, or mannerof speech in traditional public forums and even greater discretion tolimit speech on other public property.250 The Court clearly privilegesspeech more in open governmental properties than in other places. Ithas recognized that public forums such as streets and sidewalks “occupy a‘special position in terms of First Amendment protection’ because oftheir historic role as sites for discussion and debate.”251 Traditional publicforums such as parks and sidewalks are said to be “immemorially . . . heldin trust for the use of the public and, time out of mind, have been usedfor purposes of assembly, communicating thoughts between citizens, anddiscussing public questions.”252 It is common wisdom that “[t]he greatest[First Amendment] protection is provided for traditional public fora.”253

Speech in these locations enjoys the strongest constitutional protection,and content-based limits are therefore subject to the most exactingscrutiny.254

The Court has established a hierarchy among locations for FirstAmendment protection, recognizing a distinction between traditional pub-lic forums, designated public forums, and nonpublic forums.255 As to the

248. Of course, it is only by analogy. The public forum doctrine has nothing at all tosay about the regulation of speech that does not occur on public property.

249. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46 (1983)(explaining public forum doctrine).

250. See id. at 46 (“In addition to time, place, and manner regulations, the state mayreserve the forum for its intended purposes, communicative or otherwise, as long as theregulation on speech is reasonable and not an effort to suppress expression merely be-cause public officials oppose the speaker’s view.”).

251. McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (quoting United States v.Grace, 461 U.S. 171, 180 (1983)).

252. Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939) (plurality opinion).253. Victory Through Jesus Sports Ministry Found. v. Lee’s Summit R-7 Sch. Dist., 640

F.3d 329, 334 (8th Cir. 2011).254. See Perry Educ. Ass’n, 460 U.S. at 44–45 (noting historically strong constitutional

protections in public forums).255. The Court succinctly summarized the distinction among the three categories in

the following way:[O]ur decisions have sorted government property into three categories.First, in traditional public forums, such as public streets and parks, “anyrestriction based on the content of . . . speech must satisfy strict scru-tiny . . . .” Second, governmental entities create designated public fo-rums when “government property that has not traditionally been re-garded as a public forum is intentionally opened up for that purpose”;speech restrictions in such a forum “are subject to the same strict scru-tiny as restrictions in a traditional public forum.” Third, governmentalentities establish limited public forums by opening property “limited touse by certain groups or dedicated solely to the discussion of certain sub-jects.” . . . “[I]n such a forum, a governmental [sic] entity may imposerestrictions on speech that are reasonable and viewpoint-neutral.”


latter, the Court has recognized that some government property can beclosed off to all speech activities.256 Stated simply, there is one set of(greater) speech protections for places that constitute traditional publicforums for speech and a separate (and lesser) set of protections forgovernment-owned forums that are not open to speech or that are onlyopen to speech by certain groups or on certain subjects.257 Thus, forplaces that are not traditional or designated public forums, unless thegovernment has affirmatively made the area “generally available” forspeech activities, the Court has upheld forum restrictions on speech solong as they are not viewpoint based and are reasonable.258 If the law rec-ognizes the right of the government to close its property to speech activi-ties, then it might stand to reason that recording on nonpublic propertyis subject to at least as much regulation by the State.259

But like the right of access and captive audience cases, the public fo-rum doctrine does not apply to the distinction between private and pub-lic recording for at least a couple of reasons. First, the government’s legit-imate interest in regulating speech on public property relates to its au-thority to manage those spaces for enjoyment by multiple users and toprevent uses of public property that may interfere with its intended pur-poses.260 Competing demands for use of public spaces for First Amendmentactivity can result in chaos and disruption and inhibit both the exercise

Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez,561 U.S. 661, 679 n.11 (2010) (citations omitted) (quoting Pleasant Grove City v. Summum,555 U.S. 460, 469–70 (2009)) (misquotation) (applying limited public forum doctrine toevaluate regulation of certain student activities); see generally Chemerinsky, supra note168, §§ 11.4.1–.2 (explicating public forum doctrine).

256. Adderley v. Florida, 385 U.S. 39, 46–47 (1966) (holding sheriff has power todirect demonstrators off jail grounds).

257. Compare Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680(1992) (holding speech in airport terminals is not subject to First Amendment protec¬tionbecause airport terminals are not public forums), with Frisby v. Schultz, 487 U.S. 474, 481(1988) (holding residential street was public forum).

258. Ark. Educ. Television v. Forbes, 523 U.S. 666, 678–79 (1988) (explaining if gov-ernment provides only selective access to forum, then property is nonpublic forum). Acontent-based or subject-matter restriction on speech in a limited or nonpublic forum ispermitted. Id. at 667 (“Access to a nonpublic forum can be restricted if the restrictions arereasonable and are not an effort to suppress expression merely because public officials op-pose the speaker’s views.”).

259. Outside of traditional public forums, public spaces are open to speech only if thegovernment chooses to allow speech in such a space. Chemerinsky, supra note 168,§ 11.4.2.3 (explaining restrictions in designated public forum—those affirmatively openedfor speech by government—must be content- and viewpoint-neutral and serve importantgovernment interest, whereas restrictions in limited public forums need only be viewpoint-neutral and reasonable); id. § 11.4.2.5 (“Nonpublic forums are government propertiesthat the government can close to all speech activities.”).

260. See, e.g., Pleasant Grove City, 555 U.S. at 480 (explaining accepting every monu-ment donation into park would inevitably lead to closing of park); Perry Educ. Ass’n v.Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (noting “content-based prohibitionmust be narrowly drawn to effectuate a compelling state interest”).


of speech and the use of the property for other nonspeech reasons, suchas little league baseball games and picnics. Similarly, limits on speech atschools are designed to ensure that the educational mission is not im-paired,261 solicitation limits at airports are intended to avoid hassles foralready frenzied airline travelers,262 and limits on courtroom protests aredesigned to maintain the dignity of the forum and protect the due pro-cess rights of participants.263 As the Supreme Court has observed, “[t]hecrucial question is whether the manner of expression is basically incom-patible with the normal activity of a particular place at a particulartime.”264

None of these governmental interests in preventing speech to avoidinconvenience or interference with the present use of an area apply tothe act of recording. That is, the public forum doctrine applies to activi-ties that are at the pure speech end of the expression spectrum. As ex-plained earlier, the First Amendment covers a wide range of conduct,from pure political speech to wearing armbands and burning flags torecording images and sounds.265 All of these acts are expressive enoughto trigger speech protections, but only those speech activities toward thepure communicative end of the spectrum are covered by the public fo-rum cases. It simply makes no sense to treat a noncommunicative act ofexpression as raising the same concerns as a protest or a concert; the lat-ter forms of expression will cause immediate interference with the con-temporaneous use of the forum—the very problem that the public forumdoctrine was designed to address.

To reiterate the central point here: All expressive activity falls alonga spectrum. At the one end is pure speech—the speaking of words—andat the other end are acts that are essential components of such speech orare integral to facilitating such speech—such as purchasing a printingpress. Though recording is not pure speech, it is still protected activityand entitled to undiluted First Amendment protection. However, the factthat recording is a precursor to pure speech also means that the law’sgeneral concerns with communicative interruptions are irrelevant becauserecording is typically not incompatible with others’ uses of either publicor private space. To use the Court’s own example, the public forum caseswould allow the state to ban a person from standing up on the table in apublic library and shouting out in protest of a government policy be-

261. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (explainingstudent’s “vulgar and lewd speech . . . would undermine the school’s basic educationalmission”).

262. See, e.g., Krishna Consciousness, 505 U.S. at 682 (finding airports may limit solicita-tion practices in order to “provide services attractive to the marketplace”).

263. See, e.g., Press-Enter. Co. v. Superior Court, 478 U.S. 1, 9 (1986) (balancingpublic’s right of access with right to fair trial).

264. Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).265. Supra sections II.B–.C.


cause that speech interferes with other patrons’ use of the library.266 Butthat interest would not justify a regulation prohibiting video recording ina public library, say, to document the plight of the local homeless popula-tion because that law would not implicate the government’s legitimatemanagerial interests.

* * *In short, there are a variety of important First Amendment consid-

erations that, at least by analogy, suggest that recording in private is lessprotected than recording in public. But upon close examination, none ofthese limits hold up to careful scrutiny. The concerns that undergird vari-ous location-related limits on speech—the public forum doctrine, thecaptive audience cases, the newsgatherers’ privilege, and the right of ac-cess rules—are all inapplicable to a noncommunicative act of recordingdone in a location where one is otherwise permitted to be.

C. Governmental Interests and the Right to Record

The previous sections have developed the claim that there is a rightto record and that it extends to private property. When a person is law-fully present at the place of recording and is engaged only in record-ing—and not audible speech—the recording is presumptively protected.In addition, when that person is recording on private property withoutthe owner’s consent, the right is presumptively protected only if the re-cording is on a matter of public concern or contributes to public dis-course. Even if all of these conditions are met, however, not all recordingis or should be universally protected. As acknowledged at the outset ofthis Article, assessment of the right to record will necessarily be contextspecific.

As the opportunities for individuals to record videos have expanded,governments have identified reasons to regulate either the recording orthe later dissemination of such recordings. Examination of state actionthat interferes with the right to record would still be subject to applica-tion of the basic infrastructure of First Amendment doctrine. Thus,viewpoint- and content-based restrictions on recording would be highlysuspect and would be evaluated under traditional strict scrutiny; the lawswould have to be narrowly tailored to advance a compelling governmen-tal interest, and the state would have to show that no less speech-restrictivealternative was available to serve that interest.267 In contrast, content-neutralregulations of video recording would be subject to intermediate scrutiny,

266. See Grayned, 408 U.S. at 116 (“Although a silent vigil may not unduly interferewith a public library, making a speech in the reading room almost certainly would.”(citation omitted)).

267. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641–42 (1994) (contrastinglevel of scrutiny for content-based and content-neutral regulations).


drawing on the Court’s public forum cases.268 Under that standard, lawsmust be “narrowly tailored to serve a significant governmental interest”and must “leave open ample alternative channels for communication ofthe information.”269

A comprehensive treatment of the right to record, therefore, mustinclude an assessment of when the state’s interest in regulating recordingis either “compelling” under strict scrutiny or at least “significant” underintermediate scrutiny. These tests have real meaning in the context ofadjudications of the right to record. In contrast to the work of otherscholars, this Article argues that heightened scrutiny should not be con-sidered fatal in fact.270 It is legitimate for courts to closely examine thegovernment’s asserted interests to determine both their legitimacy andweight. Sometimes the government’s interests may be credible and pow-erful, as in the context of laws criminalizing the nonconsensual record-ing of nudity.271 Likewise, there are certainly other times when the gov-

268. The Court also applies a version of intermediate scrutiny in cases examining theconstitutionality of government regulations of expressive conduct. See United States v.O’Brien, 391 U.S. 367, 377 (1968). The Court has essentially acknowledged that time,place, or manner and speech/conduct tests are now the same standard. See Barnes v. GlenTheatre, Inc., 501 U.S. 560, 566 (1991) (applying rule from O’Brien after determining“time, place, or manner” test applied to law at issue); Ward v. Rock Against Racism, 491U.S. 781, 798 (1989) (affirming use of intermediate scrutiny); see also Ashutosh Bhagwat,Of Markets and Media: The First Amendment, the New Mass Media, and the Political Componentsof Culture, 74 N.C. L. Rev. 141, 167–70 (1995) (describing Court’s merger of time, place,or manner test with speech/conduct test as “Ward/O’Brien test”). The “Ward statement ofthe test has become the standard formulation.” Id. at 168. See generally Geoffrey R. Stone,Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189, 190–93 (1983)(discussing doctrine on content-neutral analysis).

269. Ward, 491 U.S. at 791; see also McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014)(applying standard articulated in Ward to speech on public sidewalks).

270. See Gerald Gunther, The Supreme Court, 1971 Term—Foreword: In Search ofEvolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L. Rev. 1, 8 (1972) (noting most rigorous level of constitutional scrutiny is often “‘strict’ intheory and fatal in fact”). One of the arguments against sometimes upholding laws underthe strict scrutiny standard is that doing so will dilute the meaning of the standard andeventually undermine the enforcement of fundamental constitutional rights. See, e.g.,Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98Colum. L. Rev. 267, 394–95 & n.408 (1998) (pointing out Court’s hesitation to applyhigher standards of scrutiny in particular cases “will undermine the integrity of the stand-ard in others”). On the contrary, courts can implement strict scrutiny in a meaningfulmanner that is highly skeptical of the government’s justifications but sufficiently flexible torecognize that sometimes state interests can be truly compelling. See Chen, Statutory SpeechBubbles, supra note 123, at 88–89 (arguing applying strict scrutiny “promote[s] a morehonest discourse about the fundamental constitutional conflicts that confront contempo-rary society”).

271. See, e.g., 18 U.S.C. § 1801 (2012) (criminalizing intentional and knowing captureof naked parts of individual’s body without consent). See generally Citron & Franks, supranote 10, at 363 (asserting criminalizing video voyeurism protects against “dignitary harmsupon the individual observed . . . [and] a social harm serious enough to warrant criminalprohibition and punishment”).


ernment will have strong reasons to safeguard the rights of individualswho have reasonable expectations of personal privacy in the activity be-ing recorded or to restrict recording to protect misappropriation of tan-gible, material property interests.272

Other times, however, the very legitimacy, much less the weight, ofthe state’s interests is highly questionable. Ag-gag laws, which criminalizenonconsensual recordings of conduct at commercial agricultural facili-ties to expose unsavory and sometimes illegal abuses of farm animals,have been argued to advance broad, undifferentiated interests in protect-ing private property.273 There is good reason to suspect, however, that thelegislatures in jurisdictions that have adopted such laws are more con-cerned with protecting the economic interests of large agricultural cor-porations, which may be the source of significant campaign contribu-tions.274 Ag-gag laws have reportedly been pushed by industry tradegroups as part of a national campaign in response to the bad publicityarising from the undercover investigations of animal rights groups andnot out of legitimate privacy concerns.275

In the following sections, this Article considers three government in-terests that are likely to be advanced to support regulating the FirstAmendment right to video image capture. First, it considers whether thegovernment may impose such regulations to protect tangible interests inprivate property. Next, it examines the extent to which states might re-strict video recording to protect personal privacy interests. Finally, it ana-lyzes whether other distinctive, context-specific interests might some-times justify a limitation on the right to record.

1. Tangible Property Interests. — In certain contexts, the state will beable to assert a compelling interest in protecting tangible property rights.However, it is important to note that the mere assertion of a propertyinterest is not sufficient to overcome a ban on recording, either in publicor private. An undifferentiated assertion of private-property protection asa government interest is simply too generalized, just as an assertion thatthe state enacted this law to “make the state a better place” could not

272. See infra section II.C.1 (discussing when government interest in protecting tangi-ble property interests may be compelling).

273. See, e.g., Animal Legal Def. Fund v. Otter, 118 F. Supp. 3d 1195, 1202 (D. Idaho2015) (noting Idaho’s contention that its ag-gag statute “is intended to protect privateproperty and the privacy of agricultural facility owners”).

274. See, e.g., Will Potter, U.S. Congressmen Compare Undercover Investigators toArsonists and Terrorists, Green Is the New Red (Aug. 28, 2012), http://www.greenisthenewred.com/blog/undercover-investigation-usda-slaughterhouse-terrorism/6296/ [http://perma.cc/D9M3-DCMX] (“[O]ne member of Congress equated the recent investigationof Central Valley Meat Co. in California to arson, and called it ‘economic terrorism.’”).

275. See Matthew Shea, Note, Punishing Animal Rights Activists for Animal Abuse:Rapid Reporting and the New Wave of Ag-Gag Laws, 48 Colum. J.L. & Soc. Probs. 337, 349(2015) (quoting ag-gag bill supporter’s claim “it doesn’t take much for a producer to beput out of business if they get some very bad publicity about things that have gone on attheir farm” (citation omitted) (internal quotation marks omitted)).


suffice as a compelling or significant interest. The very purpose of height-ened scrutiny is to require a close judicial examination of the state actionand its rationales.276

Framed at a greater level of specificity, however, there are a numberof tangible property interests that might support state regulation of videorecording. First, there could be legitimate concerns about the misappro-priation of intellectual property. For example, a government regulationthat prohibited taking video recordings of copyrighted performances at apublicly owned theater might be justified on that ground. Similarly, lawsthat prohibit video recordings used to steal a business’s trade secretswould likely be tolerated because there is a state interest in protectingthose secrets and promoting innovation as a matter of public policy.277

Moreover, such a prohibition might survive First Amendment scrutinywhether the recording was made in public or in private. Another legiti-mate interest might be the imposition of penalties for physical damage toproperty resulting from a person’s video recording. For instance, tortliability for damage to property caused by the use of large video record-ing equipment would not necessarily be invalid even if the recording metthe other requirements of the right to record. Similarly, if an undercoverinvestigator caused personal injury or some other tangible harm to prop-erty arising from the act of recording, she could be held criminally orcivilly liable. What these interests have in common is that they are identi-fiable and tangible.

By contrast, in the absence of such tangible harms, the act of record-ing does not intrinsically cause any legally cognizable harm to propertyinterests. As one federal judge recently concluded:

Other than physical damage to property, the most likely lossthat would flow from a violation of section 18–7042 [Idaho’s ag-gag law] would be losses associated with the publication of avideo critical of an agricultural facility’s practices. In fact, themore successful an activist is in mobilizing public opinionagainst a facility by publishing a video or story critical of the fa-cility the more the activist will be punished. Moreover, agricul-tural operations will be able to collect the same damages as in alibel action without satisfying the constitutional defamationstandard, which the Supreme Court has expressly prohibited.278

The actual physical presence of the person making the recordingand the act of recording itself do not typically interfere with a propertyinterest in any meaningful way. It is a concept foreign to law to argue, for

276. It is not that privacy or private property is not compelling per se, it is that a vagueassertion of such rights does not allow a court to assess whether the interest behind the lawis truly important. A compelling interest has to be meaningfully concrete and specific.

277. This assumes, of course, that the phrase “trade secrets” is not defined at a level ofgenerality that is too vague and unmoored to constitute a concrete, compelling govern-ment interest.

278. Otter, 44 F. Supp. 3d at 1024.


example, that one enjoys a property right to be free from the very pres-ence of an invited guest who later turns out to be a civil-rights tester orwhistleblower.279 And to the extent that a company suffers a loss of busi-ness because of the reputational effects of the exposure of its illegal orotherwise unsavory conduct, that harm is not caused by the person re-vealing the conduct but by the company’s own behavior.280 This is analo-gous to the argument that there should be a limited First Amendmentright to use investigative lies to access important information:

Of course, it is true that without publication there would be noreputational harm, but the First Amendment cannot tolerate alimitation on lies simply because they may lead to the publica-tion of information that is otherwise unavailable, at least notwhen the information is non-intimate, non-defamatory, and ofgreat political importance.281

The same could be said about video recording. Though the exhibi-tion of that recording may be a but-for cause of any harm that might be-fall a company whose abusive practices are exposed, the actual underly-ing cause of the loss of reputation is the practices that have beenexposed. As one commentator has suggested, “One reason the means bywhich raw information is obtained is not the proximate cause of publicationdamages is because that raw information harms no one.”282

To state the matter more directly, a bare desire to avoid reputationalinjury is not a cognizable property interest entitled to be insulated fromthe limitations on liability imposed by defamation law. If the harm al-leged was grounded on damage caused by false factual statements, thenthere is no question that common law defamation torts would be ade-quate to address their harms, even with the First Amendment limits im-posed by the Court on such claims.283 There is no right to mislead or pro-vide false impressions through video recording. No one could reasonablyassert a right to record and cause damage through the presentation ofuntruthful (or substantially untrue) broadcasts. This consideration maycause courts to look differently at situations in which the video is allegedto be edited or otherwise presented in a way that conveys untruthful in-

279. See, e.g., Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1353 (7th Cir. 1995) (“‘Testers’who pose as prospective home buyers in order to gather evidence of housing discrimina-tion are not trespassers . . . .”).

280. Chen & Marceau, supra note 17, at 1502–04 (arguing undercover investigationsgenerally do not proximately cause any legally cognizable harm by exposing unsavoryacts).

281. Id. at 1502.282. Nathan Siegel, Publication Damages in Newsgathering Cases, Comm. Law., Summer

2001, at 11, 15 (emphasis added).283. See, e.g., United States v. Alvarez, 132 S. Ct. 2537, 2553–54 (2012) (Breyer, J.,

concurring in the judgment) (conceding “many statutes and common-law doctrines makethe utterance of certain kinds of false statements unlawful”).


formation, as in the recent controversy over the CMP’s secret videos ofPlanned Parenthood officials.284

But recent legislative efforts, including ag-gag laws, evince a willing-ness to punish persons who record for the harm caused by their truthfulbroadcasts.285 By providing government support through measures thatimpose criminal or civil penalties on the persons making these record-ings, such laws are designed to evade the limitations imposed on liabilityby the First Amendment defamation cases. Such efforts to circumventFirst Amendment doctrine reduce the likelihood that this type of law willsurvive constitutional scrutiny.

2. Personal Privacy Interests. — In addition, an interest closely relatedto the protection of private property is safeguarding personal privacy.286

One of the most important debates among contemporary First Amendmenttheorists involves the tension between speech and privacy, a potentialconflict that has not surprisingly emerged in full blossom as new tech-nologies make data collection, transfer, and dissemination (like video re-cording) easy and inexpensive.287 As Professor Neil Richards has compel-lingly argued, these advances create substantial risks for consumers andothers who wish to maintain their privacy and autonomy.288 Thus, an im-portant consideration in assessing the constitutional right to record is theincreased privacy concern applicable to private property. A doctrinal frame-

284. See Editorial, The Campaign of Deception Against Planned Parenthood, N.Y.Times (July 22, 2015), http://www.nytimes.com/2015/07/22/opinion/the-campaign-of-deception-against-planned-parenthood.html (on file with the Columbia Law Review) (ex-plaining edited version of Planned Parenthood video conveyed inaccurate information topublic regarding legality of organization’s acts). Another aspect of accuracy that could bechallenged is when the video is recorded at an angle or produced in a way that mightaffect the objectivity of its depictions. See Frank Barnas & Ted White, Broadcast NewsWriting, Reporting, and Producing 13 (5th ed. 2010) (discussing how different camerashots may be used in misleading ways).

285. Animal Legal Def. Fund v. Otter, 118 F. Supp. 3d 1195, 1208 (D. Idaho 2015)(striking down “statute [that] . . . punish[es] employees for publishing true and accuraterecordings on matters of public concern”).

286. The privacy interests of business entities themselves, while recognized, are notnearly of the same order as individual privacy. The Court “has recognized that a business,by its special nature and voluntary existence, may open itself to intrusions that would notbe permissible in a purely private context . . . .” G.M. Leasing Corp. v United States, 429U.S. 338, 353 (1977) (distinguishing between entity’s and individual’s sense of privacy).

287. Indeed, in defending an antiwhistleblower statute’s constitutionality, a special in-terest group describes a ban on audiovisual recording in all farming operations as a classic“conflict of rights” and urges that “[t]he rights of privacy and property . . . are not subor-dinate to the right of free speech.” Brief for Idaho Dairymen’s Ass’n, Inc. as Amici Curiaein Opposition to Plaintiffs’ Motion for Partial Summary Judgment at 2, Animal Legal Def.Fund v. Otter, 44 F. Supp. 3d 1009 (D. Idaho 2014) (No. 1:14-cv-00104-BLW).

288. See Neil M. Richards, Reconciling Data Privacy and the First Amendment, 52 UCLAL. Rev. 1149, 1158 (2005) (discussing such risks as identity theft, stalking, or harassmentassociated with consumer profiles); see also Neil Richards, Intellectual Privacy: RethinkingCivil Liberties in the Digital Age 153–68 (2015) (promoting ways to protect both personaldata and free speech).


work that adequately accounts for the privacy concerns of those who arerecorded in a private setting is essential.289

But just as with an overly broad articulation of property rights, a ge-neric reference to the importance of personal privacy cannot categori-cally defeat any First Amendment claim. Privacy, like any other govern-ment interest, must be specifically articulated in terms of what particularprivacy goals the law or government action will serve.290 It is not enoughto simply assert a broad, undifferentiated privacy claim on all privateproperty. The privacy interests in the open areas of a large, commercialworkplace are quite different than the privacy interests in one’s bath-room or living room. Thus, while government interests in privacy are dif-ferent in public than they are in private, defining expectations of privacyin this context purely in terms of whether the recording is in public orprivate is overly simplistic and analytically incomplete.

On the most basic level, the argument that private recording alwaysviolates privacy rights rests on the erroneous assumption that the FirstAmendment right to record on private property would necessarily implya right of access to private property in order to record. As previously ex-plained, the former does not imply the latter; the right to record shouldbe limited to those who already have lawful access to the place where therecording occurs.291 One cannot enter someone else’s home, even a poli-tician’s, just because he thinks the occupants might be talking about some-thing interesting or newsworthy. On the other hand, if a person is invitedto a location, as a guest, an employee, or in some other capacity, the pri-vacy interest in keeping secret any nonintimate details revealed to thatparty is not as substantial. The interest in privacy for things one does notkeep private is not very great. If a politician invites a constituent into hisoffice and uses illegal drugs in his presence, for example, that politiciancan hardly claim a privacy violation if the constituent later writes a jour-nal entry or a newspaper column about the encounter.292 Similarly, thepolitician’s objection to the disclosure of a self-authenticating, irrefutablerecording of the actions would not be sufficient to overcome the constituent’s

289. Kreimer, supra note 24, at 386 (citing Daniel J. Solove, The Virtues of KnowingLess: Justifying Privacy Protections Against Disclosure, 53 Duke L.J. 967, 983–84 (2003))(arguing not all forms of speech are valued as highly as privacy when balancing freedom ofspeech against other interests).

290. See, e.g., ACLU v. Alvarez, 679 F.3d 583, 586–87 (7th Cir. 2012) (finding govern-ment failed to adequately articulate privacy concern that would outweigh right to speechin statute banning audiovisual recordings of police officers).

291. See supra section II.A.1.a (noting right to record should not be prohibited whenperson has right to be in place where recording occurred).

292. When this Article was originally drafted, this hypothetical was made up to illus-trate the point. Since then, it has become a reality. Jenny Gross, Lord Sewel Resigns AfterDrug Claims, Wall St. J. (July 28, 2015, 7:35 AM), http://www.wsj.com/articles/lord-sewel-resigns-after-drug-claims-1438069487 (on file with the Columbia Law Review) (describinghow senior member of House of Lords resigned after tabloid newspaper published imagesand video of his cocaine usage).


right to record under the First Amendment. Likewise, the childcare man-ager who is caught on tape abusing children by a Dateline NBC investiga-tor might regret that she hired or invited an undercover reporter intoher workplace, but she did not have a reasonable expectation of privacyin avoiding the observation—she knew that another person witnessed theabuse. Her interest is exclusively in preventing the distribution of the re-cording, and a law that facilitates such an interest directly suppresses ex-pression regarding a matter of public concern.293

Stated differently, short of stealing trade secrets or potentially inti-mate bodily images or details, the privacy intrusion narrative is often-times a canard. The person who is observed (or observed and recorded)is not arguing that the observation itself was improper, for she consentedto the observation by a third party. Rather, she is attempting to prevent“evidence of dubious or potentially embarrassing actions” from beingconveyed “to a wider audience.”294 If accepted, such a claim would under-mine the work of an Upton Sinclair-like journalist who takes notes abouthis observations at a large commercial operation and later communicateswhat he observed to the general public and paint him as a violator ofpersonal privacy rather than a muckraking hero. And the more evidenceof harmful activity he exposes, the more “wrongful” his conduct. Thenotion that the First Amendment does not protect the ability of investiga-tive reporters to expose public harms cannot be the rule.

Photographs are said to be worth a thousand words and videos worthmillions of online views.295 The unimpeachable and rapidly transmittablenature of modern video images ought to make recording more, not less,valuable than the hand-scribbled retellings of a firsthand observation.

Of course, there will sometimes be a compelling government inter-est in regulating recordings by persons who are lawfully present whenthey make the recording because the recording violates tangible and con-crete privacy interests. The hotel housekeeper who in good faith enters abathroom to clean it and comes upon a guest in a state of undress hassurely intruded on protected privacy if she records the scene.296 Eventhough she is lawfully present, the state has an interest in protecting theguest’s personal privacy. By the same reasoning, laws banning so-called

293. Kreimer, supra note 24, at 404–05.294. Id. at 383.295. Scott MacFarland, If a Picture Is Worth a Thousand Words, What Is a Video

Worth?, Huffington Post (Mar. 20, 2014, 12:32 PM), http://www.huffingtonpost.com/scott-macfarland/if-a-picture-video-production_b_4996655.html [http://perma.cc/5L5C-V6KP](arguing there should be shift in paradigm from “picture is worth a thousand words” to“moving picture is worth a million people”).

296. Because this would constitute a nonconsensual recording on private property, thetheory of the right to record would impose a public-concern limitation. Thus, in additionto the privacy considerations, the value of the speech here would be extremely low be-cause it does not touch on a matter of public concern. On balance, the harm is great andthe value is low, so bans on such recordings would likely be upheld.


“up-skirt” videos or photos,297 which can many times be taken from a van-tage point where the recorder or photographer is lawfully present, surelycomport with the First Amendment insofar as the speech has little socialvalue and the harm to privacy is potentially great.298

The government will also have a stronger claim to regulating record-ings when they take place in a private home, as opposed to a commercialworkplace. The Court’s admonition in the Fourth Amendment contextthat all details of the home299 are intimate and therefore entitled to areasonable expectation of privacy, while not dispositive with respect toFirst Amendment claims, certainly has a strong bearing on the extent towhich someone’s asserted right to record on private property can over-come a prohibition on in-home recordings. Perhaps there is always acompelling government interest in protecting the privacies of thehome.300 Indeed, the one rather dated case that seems to stand as an ob-stacle to recognizing a right to record on private property, the Ninth Circuit’sdecision in Dietemann v. Time, Inc.,301 is most cogently explained as a caseabout a video investigation of one’s home.302

But even on the assumption that the Constitution might afford per-sons privacy rights against their fellow citizens that are as strong orstronger than the protections for privacy provided against the govern-ment—that is, even if the First Amendment rights of private citizens arediluted to the extent required to protect privacy rights from government

297. See, e.g., 720 Ill. Comp. Stat. Ann. 5/26-4(a-10) (West Supp. 2015) (“It is unlaw-ful for any person to knowingly make a video record or transmit live video of another per-son under or through the clothing worn by that other person for the purpose of viewingthe body of or the undergarments worn by that other person without that person’sconsent.”).

298. Similarly, while this Article does not directly grapple with the issue here, it is con-ceivable that the First Amendment might not prohibit narrowly tailored laws that limit useof high-level advanced technology to enhance images and video record what would not beobservable to the human eye—or perhaps to modestly enhance visual images, such asthrough binoculars—to protect individual privacy.

299. Kyllo v. United States, 533 U.S. 27, 38 (2001); see also id. at 37 (“In the home . . .all details are intimate details . . . .”); id. at 40 (“[T]he Fourth Amendment draws ‘a firmline at the entrance to the house.’” (quoting Payton v. New York, 445 U.S. 573, 590(1980))).

300. Of course, for persons who gain access to another’s home through deception, thecourts seem resigned to saying, for Fourth Amendment purposes, that is no reasonableexpectation of privacy in the details of the home that are revealed through the otherwiselawful (if deceptive) entry. See, e.g., United States v. Wahchumwah, 710 F.3d 862, 868 (9thCir. 2013) (holding law enforcement may enter one’s home through deceptive means andsecretly video record what they observe in house).

301. 449 F.2d 245, 247–50 (9th Cir. 1971) (explaining First Amendment is “not alicense to trespass, to steal, or to intrude by electronic means”).

302. This Article contends that Dietemann is wrongly decided, supra notes 206–213 andaccompanying text. Even though the video in that case was taken without consent withinthe home of another, the homeowner, Dietemann, had actually converted his home to anoffice where he would see patients, thus substantially reducing any reasonable expectationof privacy.


intrusion under the Fourth Amendment303—when the recording at issueoccurs outside the home, and particularly when it occurs in a regulatedbusiness or industry, the privacy concerns implicated by a video exposéare minimal. The Court has been steadfast in recognizing that persons attheir workplace enjoy greatly reduced expectations of privacy.304 Othercourts are in accord. In Medical Laboratory Management Consultants v.American Broadcasting Cos., a federal court examined a privacy tort claimagainst a television news program that sent undercover reporters to amedical testing company, ostensibly to seek advice about opening a simi-lar business.305 Meanwhile, the news program had sent pap smear slidesfor testing at the plaintiff’s lab, which failed to detect several cases of cer-vical cancer that were included among the samples.306 After the programwith the secretly recorded video footage was aired, the plaintiffs sued forinvasion of privacy, fraud, and other common law claims.307 In rejectingthe plaintiffs’ intrusion-upon-seclusion claim and distinguishing the Dietemanncase, the court emphasized the following crucial distinction:

When an intrusion occurs in a home or other personal sphere,the plaintiff’s expectation of privacy has, in most instances,been deemed to be objectively reasonable. However, courts haverecognized that there is a diminished expectation of privacy inthe workplace. When courts have considered claims in the work-place, they have generally found for the plaintiffs only if thechallenged intrusions involved information or activities of ahighly intimate nature. Where the intrusions have merely in-volved unwanted access to data or activities related to the work-place, however, claims of intrusion have failed.308

As the Supreme Court explained in the context of addressing an un-expected, warrantless intrusion into a junkyard, “in light of the regula-tory framework governing his business and the history of regulation ofrelated industries, an operator of a junkyard engaging in vehicle disman-

303. Such an assumption would be strange. It almost goes without saying that “[t]heFourth Amendment is the chief source of privacy protection” in this country, Matthew R.Koerner, Note, Drones and the Fourth Amendment: Redefining Expectations of Privacy,64 Duke L.J. 1129, 1136 (2015) (internal quotation marks omitted) (quoting Ronald JayAllen et al., Criminal Procedure: Investigation and Right to Counsel 337 (2011)), andwhere it does not provide protection against the government—the very prying eyes theConstitution is designed to protect us against—it would be strange to insist that there is ahigher-order common law or constitutional right to privacy against private parties.

304. See O’Connor v. Ortega, 480 U.S. 709, 715–18 (1987) (plurality opinion)(discussing limits of reasonable expectation of privacy in various work contexts).

305. 30 F. Supp. 2d 1182, 1185–86 (D. Ariz. 1998), aff’d, 306 F.3d 806 (9th Cir. 2002)(detailing factual background leading to, inter alia, intrusion claim after reporter fromPrime Time Live arranged visit to lab because she was “interested in starting a pap smearlaboratory”).

306. Id. at 1186.307. Id.308. Id. at 1188 (citations omitted).


tling has a reduced expectation of privacy.”309 Similarly, the National LaborRelations Board recently ruled that Whole Foods’s rules categoricallyprohibiting employees from engaging in nonconsensual video recordingin the workplace violated federal labor law because it tended to chill em-ployees’ exercise of their labor rights.310 To the extent that law enforce-ment agents or informants remain free to infiltrate and make recordingsof truly private information in the commercial context, they would beperverse to recognize an untethered common law privacy right that broad-ly trumps the First Amendment interests of private parties interested inengaging in audiovisual recording when they are lawfully present.

This does not mean that all workplace recordings are without privacyprotections. Even beyond intellectual property or trade secrets, when em-ployees enter workplace restrooms or changing rooms, they manifest anintent to close themselves off from observation or intrusion in a mannerthat does not necessarily apply when they are standing on the assemblyline or sitting in their cubicle.311

Thus far, this section has discussed privacy interests in the manner inwhich they are typically recognized under existing legal doctrine. In herrecent work, Professor Margot Kaminski has argued that privacy must beunderstood not only in spatial terms, such as the privacy of one’s homeor bedroom, but also in terms of the ability to engage in “temporal” and“social” boundary management.312 She argues that in addition to thephysical intrusions that are commonly used to describe privacy interests,individuals have a strong interest in protecting their privacy through con-trol over social relationships and the use of private information overtime.313 Thus, people may use social cues and behavior to protect privacyin ways that are not linked to physical space.314 Similarly, an individualmay want to control the length of time in which private information isaccessible to circumscribe the impact on his privacy.315 This more expan-sive understanding of privacy could have important implications for thescope of the right to record. For instance, even in a physical space suchas the workplace, where one enjoys less privacy than in the home, one’s

309. New York v. Burger, 482 U.S. 691, 707 (1987); see also Minnesota v. Carter, 525U.S. 83, 91 (1998) (recognizing private home used occasionally for business purposes mayhave reduced expectations of privacy that extend to commercial properties).

310. Whole Foods Market, Inc., 205 L.R.R.M. (BNA) 1153 (Dec. 24, 2015). Althoughthe employer argued that the purpose of its rule was to promote open communication inthe workplace, the NLRB found that it was overly broad. Id. Moreover, the Board did noteven discuss any countervailing employer privacy concerns.

311. But see O’Connor v. Ortega, 480 U.S. 709, 725 (1987) (plurality opinion) (hold-ing intrusion on employee’s privacy interests is to be judged only by standard of reasona-bleness).

312. Kaminski, Regulating Real-World Surveillance, supra note 5, at 1116, 1131–35.313. Id. at 1132–33.314. Id. at 1133.315. Id.


social privacy expectations may be that they are not being surreptitiouslyrecorded. If a person knows she is subject to such recording, she mightsubstantially alter her behavior and social relationships in a manner thatis socially undesirable.316 In the same way, one might behave differently ifhe knows that he has subjected himself only to an ephemeral privacy in-trusion, such as engaging in “streaking,” than if he understood that thisexposure might be permanently documented and disseminated univer-sally, rather than only to random passersby.317

Professor Kaminski’s important and nuanced understanding of theboundaries of privacy might complicate the calculus of when privacy in-terests outweigh the expressive value of the right to record, but it doesnot fundamentally alter our basic premise. Her arguments would mostlikely be more powerful in the very context in which the right to recordmight legitimately be circumscribed. For instance, the temporal-boundary-management interest suggests a strong case for permitting the state reg-ulation of video voyeurism, but it is substantially less powerful when itcomes to recordings in the workplace or at a public protest. In terms ofsocial-boundary management, it is certainly possible that one might changeher social behavior if she were aware that she was being recorded, butthis has limited implications in the contexts where the right to recordshould be most strongly protected—recordings in public, recordings inprivate with consent, and nonconsensual recordings in private about mat-ters of public concern. The greater the extent to which the recordingrelates to a matter of public concern and therefore contributes to speechand discourse, the less of a concern there ought to be about individualsaltering the manner in which they manage their social boundaries. In-deed, at least in areas where the recording will relate to matters of publicconcern—such as police arrests or undercover investigations of a child-care or food production facility—any altering of the behavior should beviewed as a net social gain, not a cost.

3. Other Possible Governmental Interests. — This Article does not ex-haustively catalog the types of governmental interests that will come upin litigation over a right to record, particularly in private. The right torecord is context-specific. In most situations, the most likely governmentinterests are concerns about privacy and property rights. But in certaincircumstances other context-specific interests will have to be weighed. Forexample, courtroom-recording bans raise the specter of a governmentinterest that might be important enough to overcome the right to rec-ord. Bans on recording courtroom proceedings, while gradually disap-

316. For instance, Professor Kaminski argues that one of the government interests inenacting laws banning “up-skirt” photos is to prevent undesirable shifts in private-boundarymanagement. In the absence of such regulation, it is possible that “more women will stopwearing skirts and wear more conservative coverings instead.” Id. at 1137.

317. Cf. id. at 1151–53 (observing laws restricting eavesdropping protect governmentinterests by limiting intrusions on privacy that would otherwise be ephemeral).


pearing, are still commonplace in many jurisdictions.318 Many factors as-sociated with the right to record would suggest that there should be aright to record all such proceedings. Transparency in the judicial systemis important, so virtually every judicial proceeding relates to a matter ofpublic concern.319 Assuming the courtroom is otherwise open to the pub-lic and that the person asserting the right to record is not also audiblyspeaking, the preconditions to the right to record have been met. Whilethere may be limited circumstances in which the proceedings are sealedto protect interests in trade secrets or personal privacy, in the vast major-ity of courtroom proceedings there is no individual expectation of pri-vacy.320 Nonetheless, constitutional challenges to recording bans in court-rooms have typically been unsuccessful.321 The rationale offered by mostcourts is that recording may alter the behavior of the proceeding’s partic-ipants.322 Lawyers, judges, and witnesses may conduct themselves in amanner that might ultimately alter the environment significantly enoughthat it could infringe upon due process rights of the parties, especially inthe context of criminal defendants.323 To the extent that permitting videorecording of the proceedings might compromise a real and cognizableconstitutional right of the parties, this might be sufficient to overcomethe right to record in courtrooms. However, courtroom-recording banstend to be categorical, and such interests will not be present in every cir-cumstance.324 To the extent that such interests are recognized, individual

318. Melissa A. Corbett, Lights, Camera, Trial: Pursuit of Justice or the Emmy?, 27 SetonHall L. Rev. 1542, 1547–50 (1997) (discussing O.J. Simpson trial’s effect on states’ treat-ment of cameras in courtroom and federal courts’ contention there is no right to broad-cast from courtroom).

319. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 568–73 (1980)(discussing historical background of open access to courts).

320. Aldrich v. Ruano, 952 F. Supp. 2d 295, 303–04 (D. Mass. 2013) (finding defend-ant did not have reasonable expectation of privacy in statements he made in courtroomopen to public).

321. See, e.g., United States v. Hastings, 695 F.2d 1278, 1283 (11th Cir. 1983) (findinginstitutional concerns outweighed minimal First Amendment concerns).

322. See, e.g., Estes v. Texas, 381 U.S. 532, 591 (1965) (Harlan, J., concurring)(“There is certainly a strong possibility that the ‘cocky’ witness having a thirst for the lime-light will become more ‘cocky’ under the influence of television.”). If the recording is cov-ert, one would not expect the behavior of the trial participants to change. Thus, this ra-tionale would justify banning open, but not secret, video recordings of courtroom pro-ceedings. On the other hand, perhaps the mere possibility that one is secretly recordingevents will alter behavior. See supra note 184 (discussing Heisenberg Principle analogy).However, if the prospect of secret recording alters a persons’ behavior, unlike in court-rooms where everything is already transcribed and carefully monitored, one would expectthat the behavior would be altered for the better—that is, away from criminal or antisocialconduct.

323. Corbett, supra note 318, at 1557–72.324. To be sure, there are features of courtroom recording that make bans on such re-

cording unique and perhaps less problematic under the First Amendment. First, the re-striction on recording in courtrooms is much less of an impediment on public debate thanmany other content-based recording bans. Courtrooms are generally open to the public,


claims of a right to record a particular proceeding must be answered witha direct assertion of how the recording would impair the parties’ rights.

CONCLUSION

American democracy has a history of being informed by rebelliousand often unpopular investigations. Our laws and mores are often re-flected in concrete reactions to clandestine discoveries. But even upthrough the midtwentieth century, documenting a disconcerting or dis-quieting practice required a pen and paper. Upton Sinclair documentedfood safety and labor concerns by watching, remembering, and then writ-ing up his notes in his room at the end of each day of investigation. To-day, the ubiquity and relatively inexpensive nature of recording deviceshas resulted in a fundamental shift in our ability to authenticate and doc-ument the wrongdoing observed by an individual reporter, investigator,or activist. Just as disruptive innovation325 can cause revolutionary trans-formation of economic markets, these technological advances have thecapacity to completely change the nature of whistleblowing and freespeech. But because First Amendment doctrine has not yet caught up,the modern-day Upton Sinclair is at risk.

By examining the history and purpose of free speech, this Article de-veloped the claim that there is a right to record and that it extends tosome recordings on private property. More specifically, there is a right torecord even on private property without consent if the recording relatesto a matter of public concern and if the person making the recording isotherwise lawfully present at the location the recording is made. Finally,even when each of these threshold conditions is satisfied, this Article ex-amined competing governmental interests that, at least in some in-

and the proceedings are fully transcribed and available; thus the impingement on publicdebate is certainly reduced. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606(1982) (“[T]he right of access to criminal trials plays a particularly significant role in thefunctioning of the judicial process and the government as a whole.”). Second, in the caseof courtroom bans, there is an actual conflict of constitutional rights—the speech rights ofthose who want to record and the due process rights of the parties. Courts have acceptedthat the risks of perjury, grandstanding, and interruption in a courtroom are serious andthat they are more likely when recording is known to be taking place. Stated differently,recording in a courtroom is said to harmfully disrupt the day-to-day operation of the judi-ciary. See, e.g., Press-Enter. Co. v. Superior Court, 478 U.S. 1, 9 (1986) (“[T]here are somelimited circumstances in which the right of the accused to a fair trial might be un-dermined by publicity.”); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984) (“Although the right of access to civil trials is not absolute . . . it is to be accordedthe due process protection that other fundamental rights enjoy.”). Finally, at least in somecourtrooms, perhaps those where family law or sexual assault cases are heard, there maybe discussion of intimate details and personal matters the recording of which is more of aprivacy and dignitary harm than, say, the recording of an abusive childcare facility worker.

325. See Joseph L. Bower & Clayton M. Christensen, Disruptive Technologies: Catchingthe Wave, 73 Harv. Bus. Rev. 43, 43–44 (1995) (analyzing effect of disruptive innovation intechnology industry).


stances, must be recognized as sufficiently weighty to overcome a pre-sumption of protection for the act of recording in question.

Video recordings are uniquely able to shape public debate; they areself-authenticating, easily disseminated to a wide audience, and fre-quently more powerful than words alone. When addressing state regula-tion of these recordings, courts ought to explicitly recognize that record-ing is a form of speech and grapple with the harder questions of how toapply the relevant constitutional scrutiny to the particular context inquestion. Without a coherent First Amendment doctrine for addressingthe status of recording, the government puts at risk the modern-daymuckrakers who have the greatest potential to shape political debate onissues of grave public concern.

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